Summary: We found fault with the Council’s failure to ensure delivery of all special educational provision to the complainant’s (Ms X) daughter (Y). The Council’s fault caused injustice to Y and Ms X. The Council agreed to apologise, make payments to recognise Y’s educational loss and Ms X’s distress and carry out some service improvements.

The complaint

1. Ms X says the Council failed to ensure all special educational provision included in Y’s Education Health and Care (EHC) Plan were delivered. This, she says, meant Y missed out on support she should have received. It also, Ms X says, increased he own stress and anxiety as she could not go back to work and continue a normal life.

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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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. 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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What I have and have not investigated

7. I have not investigated anything that happened after the end of July 2024. The Council’s stage two response considered delivery of Y’s therapies in the school year 2023/2024, so we should not investigate anything that happened later. The Council should have an opportunity to respond to any concerns before we can investigate.

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How I considered this complaint

8. I spoke with Ms X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. Ms 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 framework

Delivery of special educational provision

11. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
12. 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)
13. It is inappropriate for the council to seek to delegate to the school the responsibility for ensuring that the requirements of a child’s EHC Plan are delivered. The statutory responsibility for securing the special educational provision specified in the EHC Plan rests with the council, not the school. It is for the council to prove that it is doing all it can to meet its legal duty to secure for a child the special educational provision to which he is entitled. (R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 (Admin))

What happened

14. Y has significant language difficulties and is non-verbal. Until July 2023 she attended a mainstream primary school.
15. Following the special educational needs and disabilities (SEND) appeal, in July 2023 the Council issued a final post-Tribunal EHC Plan for Y. The Council named a special school (the School) in Section I. Section F included:
• Speech and Language therapy (SLT):
1. 15 hours per year of direct therapy which would include modelling interventions to school staff and parents, reviews, assessments and monitoring of progress;
2. 15 hours per year of indirect therapy which would include writing programmes, preparing annual review report, attendance in the meetings, training and liaison with school staff and parents.
• Occupational therapy (OT):
1. Six direct sessions per term which may include assessment and observation within the school, trialing and reviewing strategies, contextual modelling. Each direct session would last 45 minutes totalling 13.5 hours a year;
2. 16 indirect sessions per year to be used for staff training, reviewing OT programmes, communication with parents and other members of the Multi-Disciplinary Team, writing reports and attending meetings. They would total 13.5 hours a year.
16. From September Y started attending the School. The School made referrals to the SLT and OT for Y.
17. At the end of September SLT contacted Ms X and a few days later carried out a classroom observation. Two weeks later OT contacted Ms X.
18. In the second week of October Ms X told the School Y was not receiving her therapies as specified in her EHC Plan. At the end of November Ms X contacted the Council. Y’s case officer told Ms X she should contact the School as they were implementing the plan.
19. Ms X continued communicating her dissatisfaction with SLT and OT to the School. The School liaised with the therapists.
20. From December 2023 Ms X arranged monthly sessions of SLT for Y which she funded herself. In the spring of 2024 Ms X found an independent SLT based closer to her address, who could also support Y with the different communication system (called in this decision the advanced communication system) she had recently started using. Throughout May and June 2024 Y received weekly SLT sessions from the new independent provider.
21. In February the School’s SLT carried out Y’s assessment for the use of the advanced communication system and prepared a report. She also prepared the SLT report for the Annual Review of Y’s EHC Plan.
22. In mid-March 2024 the OT lead in the School told the Council the provision in Y’s EHC Plan was above the School’s core offer and could not be provided as part of their service. For Y to receive the OT specified in her plan the Council either needed to pay for the extra hours or to commission an independent OT.
23. At the end of March 2024 Ms X complained to the Council. She told the Council Y had not received any direct SLT or OT since she had started the School in September 2023. There was no evidence the therapists had carried out any interventions such as group SLT therapy or OT observations.
24. In April 2024 the OT prepared a report, where she recommended for Y to receive four hours of direct and 11 hours of indirect OT.
25. In its response to Ms X’s complaint the Council said until April 2024 Y had received 7.5 hours of direct SLT and 15.5 hours of indirect SLT. In addition SLT communicated and had meetings with Y’s parents as well as delivered four training sessions to the school staff on communication strategies, emotional regulations and timetables. The Council admitted there were delays in arranging OT sessions for Y. The Council explained the model of delivering therapies is different in special and mainstream schools.
26. An Annual Review of Y’s EHC Plan took place at the end of April 2024. The Council decided to make some amendments to Y’s EHC Plan, including the reduced OT package and replacing an old communication system used by Y by the advanced communication system. The Council issued a final amended EHC Plan at the end of September.
27. In the stage two response the Council partially upheld Ms X’s complaint. It accepted in 2023/2024 it had not secured fully delivery of all the provision included in Y’s EHC Plan.

Amount of SLT and OT delivered to Y in 2023/2024

28. From September 2023 until mid-July 2024 SLT delivered 8.5 hours of direct SLT to Y and 21.5 hours of indirect SLT. There were two further hours of direct SLT planned for the end of July. SLT delivered an hour of direct SLT with more time spent on report writing and communications.
29. In the school year 2023/2024 Y received five hours of direct OT and 12.25 hours of indirect OT.

Analysis

30. As explained in paragraphs 11 to 13 of this decision and accepted by the Council in its stage two response to Ms X’s complaint, councils have an absolute duty to secure delivery of the special educational provision included in children’s EHC Plans. This is the case even when a child attends the school and when the school makes all educational arrangements.
31. Although there was some shortage of direct SLT for Y in the school year 2023/2024 I do not think we could consider the Council’s failings significant enough to accept them as fault. This is because:
• the number of indirect SLT hours for Y significantly exceeded the amount included in Section F of Y’s EHC Plan;
• the evidence shows throughout 2023/2024 Y started using the advanced communication system which needed assessments, setting up and reviews. There is evidence SLT carried out these which in some way explains the shortage of hours for direct therapies.
32. Within its responses to Ms X’s complaint the Council accepted it had failed to ensure Y received the OT support as specified in her EHC Plan. Despite knowing from March 2024 that the OT service at Y’s school could not provide as much support as she needed, the Council failed to act. This is fault. This fault caused injustice to Y as she was not supported enough. We cannot say, even on the balance of probabilities, whether, and if so how much, the shortage of hours of the OT package impacted on Y’s behaviours reported by Ms X. When assessing the injustice caused to Y I considered that in April 2024 the OT supporting Y at the School recommended a change to her therapy package. Y’s final EHC Plan issued in September 2024 included amendments based on the OT recommendations.
33. The Council’s fault also caused Ms X distress. She spent much time communicating with the School and the Council trying to secure the content of Y’s EHC Plan.

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Agreed action

34. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Ms X and Y for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Ms X £300 to recognise the injustice caused to Y by non-delivery of all special educational provision from the beginning of September 2023 until July 2024;
• pay Ms X £250 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

35. We also recommend the Council within three months of the final decision remind the front-line special educational needs staff and their managers of the Council’s absolute duty to ensure delivery of special educational provision included in children’s EHC Plans and the need to act without delay when schools cannot secure the full therapy package included in children’s EHC Plans. The Council should provide us with evidence it has completed this action.

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Final decision

36. I uphold part of this complaint. For the reasons explained in the Analysis section I found fault with the Council’s failure to ensure delivery of all special educational provision to Y. The Council’s fault caused injustice to Y and Ms X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman