Summary: Mrs X complained the Council failed to follow a tribunal order and failed to put in place the special educational provision detailed in her child’s Education, Health and Care Plan. We have found the Council at fault for the delay in issuing the final Plan and failing to secure the special educational provision detailed in the Plan. The Council has agreed to apologise, reimburse financial costs and complete service improvements to remedy the injustice caused by the faults identified.

The complaint

1. Mrs X complained the Council failed to follow a tribunal order and failed to put in place the special educational provision detailed in her child, Y’s Education, Health and Care Plan (EHCP). Mrs X also complained the Council failed to communicate effectively following the Tribunal decision and she says the Council’s most recent complaint response is confusing and misleading. Mrs X says, as a result of the missed provision, Y is falling further behind in her learning and her mental health has been impacted. Mrs X says she has suffered financial and emotional distress. Mrs X would like the Council to repay the costs she has incurred and for the content of her child’s EHCP to be put in place for her. She would also like a change of casework officer and manager.

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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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have considered:
• All the information Mrs X provided and discussed the complaint with her;
• The Council’s comments about the complaint and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman’s guidance on remedies.
6. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and Guidance

Education, Health and Care Plans

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
8. The EHC Plan is set out in sections which include: 
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
   
9. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
   
11. 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 report.

Council complaints policy

12. The Council’s published complaints policy sets out a two stage process for dealing with complaints.
13. At stage one of the process complaints should be dealt with by the responsible service and the Council aims to provide a response within 10 working days. Where the Council cannot meet this timeframe it should contact the complainant and inform them of the delay.
14. At stage two of the process the complaint should be dealt with by a customer relations investigator who is independent of the service being complained about. If the Council decide to carry out a stage two investigation it aims to provide a response within 20 working days. If the Council is unable to meet this timeframe it should inform the complainant of the delay.

What happened

EHC Plan and provision

15. Following an appeal against the content of Y’s EHC Plan, the SEND Tribunal issued an order that said the Council must amend the Plan. The Council should have amended the EHC Plan and issued the final amended Plan by 25 January 2024.
16. The Council issued Y’s final amended EHC Plan on 7 February 2024, 13 days after the deadline.
17. Y remained at her school placement and received some of the provision detailed in section F following the issuing of her final EHC Plan.
18. Y’s EHC Plan detailed she should receive small group support across the core academic lessons to help her access the curriculum. Y’s school could not provide this provision from February 2024. In July 2024 the Council agreed to fund one to one tuition to replace the small group work. This provision did not start until September 2024.
19. Y’s EHC Plan also detailed she should receive weekly occupational therapy and speech and language therapy however the Council did not secure this provision until June 2024, four months after the Council issued the final Plan.
20. The Council has told us it provided catch up occupational therapy sessions during the summer holidays.

Communication and complaint handling

21. Mrs X sent a complaint to the Council in January 2024. The Council issued a stage one complaint response 19 working days later. The Council has not provided evidence to show it contacted Mrs X to explain there would be a delay in issuing the complaint response.
22. In February 2024 Mrs X asked the Council to consider her complaint at stage two of its complaints process. The Council completed a stage two investigation and issued a stage two complaint response 43 working days later. The Council has not provided evidence to show it contacted Mrs X to explain there would be a delay in issuing the stage two complaint response.
23. In May 2024 the Council offered the following financial remedy:
• £1000 for Y as a vulnerable young person in recognition of any contribution made to the anxiety or distress they were already experiencing.
• £2340 in recognition of the costs incurred by Mrs X, between July 2023 and February 2024, to secure occupational therapy, speech and language and tutoring.
• £500 in recognition of the significant time, effort and difficulties experienced with communication in chasing this matter with the Council.

My findings

EHC Plan and provision

24. There was a two week delay in the Council issuing Y’s final EHC Plan. This caused frustration, distress and uncertainty for Y and Mrs X.
25. The Council owes Y the duty to secure the special educational provision in their EHC Plan. The Council failed to provide the occupational therapy and speech and language therapy detailed in Y’s EHC Plan for around 4 months between February 2024 and June 2024. This caused frustration, distress and uncertainty for Y and Mrs X.
26. The Council failed to provide the small group session detailed in Y’s EHC Plan for around 7 months between February 2024 and September 2024. This provision is now in place in the form of one to one tuition, funded by the Council.
27. The Council has paid Mrs X a financial remedy to cover the costs of provision up to February 2024.

Communication and complaint handling

28. The Council failed to follow its complaints policy timeframes for issuing complaint responses and failed to keep Mrs X informed of the delays. This caused frustration and uncertainty for Mrs X.
29. The Council’s complaint responses are thorough and considered. The Council identified there had been significant difficulties in Mrs X’s communication with SEND officers allocated to Y’s case.
30. The Council has paid Mrs X a suitable remedy to recognise the injustice caused by the delay in issuing the final EHC Plan, the delay in securing the special educational provision and the communication failures Mrs X experienced throughout the process.

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Agreed action

31. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the distress, frustration and uncertainty caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
• In addition to the amount the Council has already paid in recognition of the faults, the Council should reimburse Mrs X the cost of any section F special educational provision she secured for Y between 7 February 2024 and 30 July 2024. Mrs X should provide the Council with invoices to evidence the costs she has incurred.
32. Within three months of the final decision the Council will review its process for securing special educational provision, such as speech and language therapy and occupational therapy, which cannot be delivered within a mainstream school setting and ensure there is a system in place to secure provision and funding without delay.
33. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman