Summary: Mrs X complained the Council failed to secure the provision in her son, Y’s Education, Health and Care (EHC) Plan from September 2023. The Council failed to secure some of the specialist provision in Y’s Plan between September and December 2023. The Council will apologise and make a payment for the specialist provision Y missed.

The complaint

1. Mrs X complained the Council failed to secure the provision in her son, Y’s Education, Health and Care (EHC) Plan since September 2023. Mrs X said this had a detrimental impact on Y’s education and emotional wellbeing and mental health. Mrs X wanted the Council to ensure the provision specified in Y’s Plan was secured and to provide compensation for the impact of the lost provision.

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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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
6. 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)
7. 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

8. I have investigated events between September and December 2023.
9. I have not investigated what happened after December 2023. At the end of December 2023 the Council issued an amended EHC Plan for Y and a right of appeal to the SEND Tribunal, and Y stopped attending the named school. Mrs X used the appeal right and asked the Tribunal to consider the identified needs (section B), the special educational provision (section F) and the named placement (section I) in the Plan. I cannot investigate the provision for Y after the right of appeal arose because in doing so I would overlap with matters considered by the Tribunal as set out in paragraph four.

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How I considered this complaint

10. I read the documents Mrs X provided and discussed the complaint with her on the phone.
11. I considered the documents the Council sent in response to my enquiries.
12. Mrs 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

Relevant legislation and guidance

13. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
14. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.

15. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Provision

16. 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)  
17. 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. 

What happened

Background information

18. Y lives at home with his parents and siblings. Y is of secondary school age and has additional needs that affect his learning and communication. At the time of these events Y had an EHC Plan that set out the special educational provision (SEP) he needed.
19. Y’s Plan set out the training school staff should receive and how they should communicate with and support Y’s physical needs in school. It included these specific provision:
• A speech and language therapist (SALT) will set targets for Y and monitor and review the progress every half term. They will see Y and liaise with staff and parents.
• A SALT will write a programme for staff to carry out with Y for his communication difficulties. The SALT will review the programme every half term and allocate time every year for reassessment, report writing and admin.
• ‘[Y] should have individual, weekly swimming lessons…Lessons should take place in a pool that is quiet and calm…’
• ‘Animal therapy…[Y] likes animals and would benefit from spending time with them regularly ... This could include, walking the school dog as part of his daily routine’.
• An occupational therapist (OT) should recommend movement breaks for Y and review them each term; provide and review a plan for Y’s lunchtime; and provide information and training on sensory circuits for teaching staff and review them each term.
20. The Council was aware in June 2023 that School 1 had not arranged SALT and OT provision as set out in Y’s EHC Plan and Y had not received swimming lessons. The Council agreed to provide additional funding to School 1 to procure private OT and SALT from September 2023. School 1 said swimming would start in September.

September 2023 onwards

21. In September 2023 Y attended School 1.
22. On the 22 September School 1 set out to the Council how it was providing the provision set out in Y’s EHC Plan. It said:
• Y’s swimming sessions were timetabled to start in October.
• All staff had been trained on a SALT programme but it had not been able to find a SALT for Y specifically due to a lack of availability. It said it was actively seeking quotes.
• It had not been able to find an OT, but was actively seeking quotes.
23. At the end of September Mrs X told the Council the provision in Y’s Plan was not in place. She raised concerns about the OT, SALT, animal therapy and swimming.
24. The Council contacted School 1 who agreed swimming was not in place which it said was a mistake on its part, but it would be in place by October.
25. At the beginning of October School 1 told the Council it was waiting for quotes for SALT and OT but struggling to find providers with availability.
26. At the end of October School 1 sent the Council quotes it had received for the SALT and OT. The Council agreed to the quotes.
27. In mid-November School 1 told the Council that Y was going on to a reduced timetable for four days a week on medical advice and Y was struggling to attend school.
28. School 1 commissioned the SALT to provide the relevant provision in the Plan. The SALT said they would need to reassess Y to ensure the recommendations were still valid. At the end of November Mrs X told School 1 she would not accept a reassessment as it was not necessary because Y had been fully assessed recently.
29. Mrs X told the Council the SALT, OT and swimming was still not in place and Y was now unable to consistently attend school at the beginning of December. On the same day School 1 told the Council the SALT had withdrawn because Mrs X had declined the reassessment, and asked for its advice on the next steps.
30. School 1 and the Council met to discuss the provision. The notes of the meeting recorded that swimming provision was available but Y did not always attend. It said the OT was secured but had not started as Y was not attending school. The Council agreed it would find a SALT.
31. Y stopped attending school in December. Mrs X referred to him as being ‘signed off’ school.
32. On the 22 December 2023 the Council issued an amended EHC Plan for Y and told Mrs X about her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan. Mrs X appealed to tribunal about sections B, F and I of the EHC Plan.
33. Mrs X complained to the Council in January 2024. She said the SEP from Y’s EHC Plan had not been in place since September. Mrs X wanted the Council to provide explanations and to withdraw the recent EHC Plan while other schools were consulted for a placement for Y.
34. The Council responded to Mrs X’s complaint. It said:
• The vast majority of Y’s SEP was being delivered.
• School 1 had not been able to source an OT, it was now going to arrange an OT and apologised this had been delayed.
• School 1 arranged a SALT in October but they would not provide therapy without first reassessing Y to ensure the recommendations were still appropriate. Because Mrs X declined, the SALT withdrew their services. It said it was now looking for a new SALT.
• It said a disagreement between School 1 and Mrs X over the use of the swimming pool caused a delay in the swimming lessons starting but they had been in place since early November.
• It said animal therapy was in place via the school therapy dog.
35. Mrs X was dissatisfied with the Council response. She said not all the SEP was in place and School 1 had not contacted the OTs she had suggested. Mrs X said it was not in Y’s best interest to keep reassessing him. Mrs X said School 1 had discouraged Y from swimming by timetabling at the same time as other things he enjoyed, and that there was no timetable or structure for Y to access the therapy dog and so he could not engage with it.
36. The Council responded to Mrs X in April 2024 and reiterated its stage one response. It said:
• An OT had now been found. It offered Mrs X £1662.50 in recognition of the OT input Y had missed.
• SALT reassessment was written in to Y’s EHC Plan.
• Swimming was in place by November however by then Y was unwell and medically signed off school and so was unable to receive the provision.
• The therapy dog was timetabled for Y twice a week.
• Offered Mrs X £250 for the injustice caused to her.
37. Mrs X remained dissatisfied and complained to us.
38. The Council said it made the payments of £1662.50 and £250 outlined above to Mrs X.

My findings

39. The Council was aware the specialist educational provision (SEP) had not been in place before September 2023. It should have been actively ensuring the SEP was in place prior to the start of the next academic year in line with its non-delegable section 42 duty. There is no evidence the Council was proactive in ensuring it met that duty, only that it was reacting to Mrs X contact. That was fault and caused Mrs X, frustration and distress. The Council has paid Mrs X £250 in recognition of the injustice caused to her.
40. The Council did not secure an Occupational Therapist (OT) between September and December 2023. This meant that Y missed out on a term OT input. The Council has already made a payment to Mrs X to recognise the injustice this caused, which is an appropriate remedy.
41. The Council did not secure a speech and language therapist (SALT) to meet Y’s needs until the end of November. That was fault and meant Y missed out on three months of SALT input. Once the SALT was in place, whether a reassessment of Y’s SALT needs was necessary was for the SALT to decide and was not a decision made by the Council. The Council had taken suitable steps to secure the provision for Y by November 2023. Mrs X declined the reassessment from the SALT, which is her right, however there was no further fault in the Council.
42. The Council accepted the swimming session were not in place until November 2023 which was fault and meant Y missed out on two months of swimming. Although the Council provided an explanation of a disagreement between School 1 and Mrs X as the cause of the delay, it did not provided evidence to suggest Mrs X contributed to the delay, and in any case there is no evidence the Council took any action to resolve the disagreement and secure the provision at the time.
43. Y’s EHC Plan stated he would benefit from spending time with animals, which could include walking the school dog. The evidence shows the school dog was available to Y. There was no fault in the Council’s actions on this point.

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Agreed action

44. In a separate investigation, after the events investigated above, we recommended the Council remind staff it has a statutory duty to secure the SEP in a child’s EHC Plan, which it cannot delegate; and it should properly investigate and assure itself the provision is in place without delay following a concern or complaint from a child’s parent. I therefore did not make the same service improvement recommendations here.
45. Within one month of this decision the Council will:
• Write to Mrs X and apologise for the impact of Y on the loss of SALT provision and swimming sessions. It will also apologise for the frustration and distress caused to her by the Council’s faults.
• Pay Mrs X £500 to recognise the SALT and swimming provision Y missed between September and November. Mrs X should use this for Y’s educational benefit as she sees fit.
46. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I recommended in my findings.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman