Summary: Mr and Mrs X complained the Council had failed to ensure their son received the provision outlined in his Education, Health and Care plan. The Council is at fault. It did not ensure the provision was in place after introducing a new plan. The Council will apologise, pay for the loss of provision and carry out a review of Education, Health and Care provision.

The complaint

1. Mr and Mrs X complained the Council had failed to ensure their son, C, received provision in line with his Education Health and Care (EHC) plan from April 2022 onwards.
2. They say this has impacted C’s education and, in some instances, he has regressed in his development.

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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 significant injustice, or that could cause injustice to others in the future 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 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

6. I have considered:
• The information provided by Mr and Mrs X and discussed the complaint with them;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mr and Mrs 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.
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.

Key events

11. C has autism, ADHD and other learning difficulties. He has an EHC plan to help him with lessons. He attends a specialist unit in a mainstream high school which he began attending in September 2021.

Introduction of the EHC plan

12. The Council issued a new EHC plan for C in 2021 which Mrs X appealed. A tribunal hearing went ahead in early 2022. At the hearing the school recognised that C’s homework should be differentiated like his lessons but could not confirm whether this was done. It also accepted that a specialist teacher supporting the mainstream teachers with differentiation would be useful. An independent specialist teacher also raised concerns about the lack of differentiation provided for C and the need for one-to-one support. The tribunal expressed its own concerns about the school’s awareness of C’s provision and the differentiation.
13. The Council issued an EHC plan following the tribunal in April 2022. This included the following provision:
• 20 hours of Speech and Language therapy yearly.
• A highly differentiated curriculum – devised collaboratively with a specialist teacher who visits at least monthly.
• One to one support.
• Pre-teaching including pre-learning vocabulary, pre-reading and pre-watching.
• Weekly one to one occupational therapist (OT) sessions, including work on skills such as dressing, handwriting, core stability and sensory regulation.
• An occupational therapist derived programme for developing attention, independence and sensory difficulties.
14. The EHC plan also noted the specialist teacher should produce a review report for the annual review and attend the annual review meeting. Further that this teacher should have an hour allocated for communication with other therapists, parents and the school.

The provision of the EHC plan

15. The occupational therapy service began providing sessions for C in mid-May 2022.
16. In late February 2023 the occupational therapy service contacted the Council to explain the OT working with C was leaving the service. It noted it did not have someone that could work with C anymore but was recruiting so it could in the future. The service could not provide C with OT provision for several months following this.
17. In early June the occupational therapy service told the Council it had had a meeting with the school. It provided an update on C’s performance. A further two occupational therapy sessions were held with C before the end of the school year. Occupational therapy sessions with C resumed in late September 2023. Two sessions were missed in October 2023. The service told the Council this was because the school had not responded to a visit request and due to staff sickness.
18. In mid-May Mr and Mrs X raised a complaint with the Council about C’s EHC provision. They complained that C had only received one OT session since January 2023, and that no specialist teacher had been appointed to oversee C’s work.
19. The Council issued a response in early June 2023. The Council accepted the OT had missed sessions. It stated C had missed 13 sessions between April 2022 and February 2023. It noted the occupational therapy service had tried to arrange sessions in May 2023 but these had not gone ahead because of a lack of response from the school. It stated it would be ensuring weekly sessions up to the end of term. In relation to Mr and Mrs X’s complaint about the specialist teacher it said the school employs fully trained and qualified individuals to meet the students needs. It stated using the word visit in the EHC plan was misleading and a member of staff at the school could take on the role. It suggested they arrange a meeting to find out the input C was receiving from staff.
20. Mr and Mrs X disputed this information saying the OT provision did not start until May 2022 and as such the number of missed sessions was higher than that accepted by the Council. They stated in total from April 2022 to June 2023 that 28 sessions had been missed.
21. The Council chose not to consider the complaint further as it felt its first response was sufficient on this occasion.
22. The Council arranged to carry out an annual review of C’s EHC plan in June 2023. However, Mrs X asked for this to be delayed as it had not sent the paperwork out in sufficient time before the review meeting. The Council rearranged the meeting and held it in early October 2023.
23. In her submission for the annual review Mrs X told the Council there were some issues with C’s one to one support. She explained that this was not being provided in all classes as stipulated in the EHC plan and that in some lessons his support was shared. She also raised concerns that C had not been receiving his weekly occupational therapy sessions. She explained that no sessions had occurred since January 2023.
24. During the annual review meeting in October 2023 the school noted that C’s teaching assistant helped teachers provide differentiated learning. It recorded that it would be in C’s best interest to decrease the hours of OT he received. In the professional’s opinion C was meeting targets but also not fully engaging with the OT due to his concerns about missing class and wanting to return.
25. Following the review, the Council decreased the OT provision for C. However, it agreed to continue with weekly OT sessions to allow C to catch up on the missed sessions from 2023.

Findings

26. C’s EHC plan was amended following the tribunal decision in January 2022. C had begun attending the school while his EHC plan was being appealed in September 2021. The plan also included some new provisions. Including putting in place weekly OT sessions which C had not had before and a specialist teacher to support differentiation. Importantly, the tribunal had raised concerns about how the plan had been followed previously. Given these points, I would expect the Council to have carried out a check to confirm the new provision was in place.
27. The Council has admitted during this investigation that its policy is to check provision at the annual review only. In this instance the annual review was not carried out until October 2023. This was 20 months after the tribunal decision and represents a substantial delay in the Council checking the provision. This is not in line with our expectations and is fault.
28. I note the Council missed several opportunities to investigate when concerns were raised. In February 2023 the occupational therapy service explained it could not provide the agreed service. This didn’t restart until June 2023. Despite being informed of the problem the Council took no action to confirm when it would provide the provision again or to source an alternative provider.
29. I appreciate that because of the failure to check Mr and Mrs X do not feel C has received the OT detailed in his EHC plan. During the annual review the Council did review the OT provision. After noting the OT missed sessions it has agreed to provide these going forward. This is a reasonable remedy for the lost OT provision.
30. When Mr and Mrs X raised their complaint in May 2023 the Council responded advising them to check with the school to find out the provision their son was receiving. It is the Council’s responsibility to ensure a child is receiving the provision outlined in their EHC plan. If the Council did not have evidence that a specialised teacher was providing support with differentiation it should have taken steps to find out.
31. Despite the concerns raised by Mr and Mrs X in their complaint and in preparation on the annual review I am not satisfied the Council checked this at the review. There is no mention in the annual review notes of any discussion about the specialist teacher or the one-to-one support in place. While differentiation of work was mentioned this was to confirm that C’s teaching assistant was helping staff differentiate his work. The Council’s failure to check that C was receiving the provision he was entitled to is fault.
32. I understand Mr and Mrs X’s concerns, given the tribunal raised issues with how the school was checking on differentiation and had determined that three to one support was sufficient despite the EHC plan requiring one to one. As the Council did not carry out any checks, I cannot be satisfied that C has received the support he was entitled to following the tribunal decision and the new EHC plan.
33. I have considered the Council’s comments that the school has sufficiently specialised teachers to provide the necessary differentiation. While the school may have such staff the Council has not sort to confirm that C’s timetable is being differentiated in line with his EHC plan. This is particularly important given the school noted it did not have this role and that specialist teacher support would be beneficial. The Council’s assumption the school can provide this provision without checking has caused Mr and Mrs X to worry and for them to be confused about the provision C is receiving. This warrants recognition.

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Agreed action

34. Within one month of the final decision the Council will:
• Apologise to Mr and Mrs for the confusion and concern caused by the Council failure to check C’s EHC plan provision.
• Pay Mr and Mrs X, for the benefit of C, £1,800 for the loss of provision.
• Carry out a check of the educational provision in place for C. If it identifies any missing provision the Council should take steps to resolve this and ensure the provision is in place.
35. Within two months of the final decision the Council will:
• Review its policy for checking EHC plan provision. It should ensure it has systems in place to check the provision when a new or substantially change plan is issued, when there is a new placement, and when concerns are raised.
• Share any new policy issued with staff in the education department.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I have found fault leading to injustice. The Council will take action to remedy the personal injustice caused and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman