Summary: The Council was at fault for not putting in place all the provision listed in a child’s Education, Health and Care Plan following a decision from the Special Educational Needs and Disability Tribunal. This caused injustice as the child missed out on provision they should have received. To remedy the injustice caused the Council agreed to apologise, make financial payments and put in place the remaining provision.

The complaint

1. Mr and Mrs X complain the Council:
1. Left their child without education and did not put in place the provision in their Education, Health and Care (EHC) Plan after their school placement broke down in October 2022.
2. Did not carry out a social care assessment of their child’s needs.
3. Has not put in place the provision listed in their child’s latest EHC Plan which was finalised in May 2023.
2. Mr and Mrs X say the failings by the Council not to provide alternative education and the provision listed in their child’s EHC Plan has had a serious impact on their child’s educational 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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. 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)

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What I have and have not investigated

11. I have not investigated Mr and Mrs X’s complaint that the Council failed to provide their child with suitable education and the provision listed in their EHC Plan from October 2022 until May 2023. This is because Mr and Mrs X appealed to the SEND Tribunal. They appealed the sections setting out the school placement and the special educational provision.
12. We have no discretion to investigate any issues which were part of Mr and Mrs X’s appeal and the Courts have held that we cannot investigate any matters which are closely linked to the issues under appeal. I consider the reasons for the child’s absence at school are too closely linked to the matters being appealed to the SEND Tribunal.
13. I have not investigated Mr and Mrs X’s complaint about the Council not carrying out a social care assessment for their child. This is because this matter was being considered as part of their appeal to the SEND Tribunal.
14. This investigation solely focuses on whether the Council put in place the proper special educational and social care provision for Mr and Mrs X’s child after the SEND Tribunal ended in May 2023.
15. Since making this complaint Mr and Mrs X have raised further issues about their child’s provision. I have not considered these matters. Mr and Mrs X would need to make a new complaint in the first instance about any concerns they have with how the Council is delivering their child’s EHC Plan.

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How I considered this complaint

16. As part of this investigation I considered the information provided by Mr and Mrs X and the Council. I made enquires to the Council and considered the information received in response. I sent a draft of this decision to Mr and Mrs X and the Council and considered comments received in response.
17. 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 found

Law and guidance

18. 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.
19. 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)
20. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.

What happened

21. As stated above I have not investigated matters before May 2023. I have included a summary of events from October 2022, but only for context.
22. Mr and Mrs X’s child, Y, has special educational needs. In late September 2022, the Council issued a final EHC Plan for Y. This named Y’s current school, School Z as Y’s school placement.
23. Mr and Mrs X were in discussions with School Z about how it could meet Y’s needs. Mrs X said School Z confirmed it could not meet Y’s needs and Y was permanently being taught in isolation outside of the classroom. In late October 2022, Mrs X said School Z told her she would have to stay with Y all day at school as School Z did not have the resources to provide Y with the support they needed. At this stage Y stopped attending School Z.
24. In December 2022, Mr and Mrs X appealed Y’s EHC Plan to the SEND Tribunal. They appealed the sections listing Y’s special educational needs, the special education provision and the named school placement. Mr and Mrs X also sought recommendations from the SEND Tribunal for Y’s social care needs and provision.
25. In April 2023, Mr and Mrs X complained to the Council about the following:
• The Council had not carried out a social care assessment for Y and they had to get their own independent assessment. Mr and Mrs X considered Y needed social care provision.
• The Council had not provided Y with any education since their school placement broke down in October 2022.
• Y was not receiving the special educational provision in their EHC Plan.
26. In late April 2023, the Council responded to Mr and Mrs X’s complaint. The Council provided one response from its social care team and another from its SEND team. The Council said:
• It referred Y for a social care assessment with the Children’s Disability Team in January 2023, however they believed Y did not meet the criteria to receive support. The Council said it would not refund the private assessment Mr and Mrs X obtained. The Council said Mr and Mrs X could provide Y’s EHC Plan to the Children’s Disability Team so they could consider whether Y could receive any support.
• Y was on roll at school and there was funding in place to support them. The Council said the school would look to arrange tuition for Y.
27. Mr and Mrs X were unhappy with the Council’s response and asked the Council to consider their complaint at stage two.
28. The SEND Tribunal held a case review hearing in April 2023. This established what parts of the EHC Plan Mr and Mrs X had appealed. The Judge mentioned Mr and Mrs X were seeking recommendations about Y’s social care needs and had relied on a privately commissioned report which recommended a package of social care for Y. The Judge also restricted the Council’s further participation in the appeal as it had only engaged with the appeal to a minimal extent. This meant it could not call witnesses or present late evidence.
29. On 2 May 2023, the SEND Tribunal hearing took place. The Council agreed to amend Y’s EHC Plan in accordance with the working document Mr and Mrs X had produced. This included significant changes to the special educational provision and social care support.
30. On 16 May 2023, the Council issued Y’s new EHC Plan. This contained a significant amount of special educational provision and included:
• An Education Other Than At School (EOTAS) package of education.
• A flexible and extended term curriculum covering 45-52 weeks per year.
• No longer than 2 weeks away from education during any one particular break.
• At least 15 direct hours of tutoring in Y’s home environment from SEN teachers experienced in working with children with Autistic Spectrum Disorder, Demand Avoidance and ADHD for 45 weeks per year.
• An appointed Learning Support Assistant (LSA) that has the proper training and experience of working with children who have neurodevelopmental disorders and communication difficulties.
• 10 direct hours per week during term time and 15 direct hours a week during non-term time, over a 45-week period of LSA led home/community learning activities.
• 15 hours per week of LSA support during the extended term periods (summer and half – terms activities). This included community based activities.
• During term time Y will receive 32.5 hours weekly educational curriculum comprising of LSA and Tutor hours.
• Y will be provided with a second adult for all time of the educational provision.
• One hour of one-to-one play-therapy each week, over a 52-week period.
• A minimum of two, individual 30-minute, swimming lessons each week, with a 1:1 swimming teacher, over 45 weeks per year.
• 30-minutes of 1:1 hydrotherapy sessions per week, over 52 weeks per year.
• 45-minutes of 1:1 Psychoeducation/Psychotherapy sessions each week, with a clinical psychologist or educational psychologist.
• Six direct Occupational Therapy (OT) sessions per term lasting an hour per session.
• Y will be provided with a computer.
• Lego therapy of one hour per week.
• 36 hours of indirect Speech and language Therapy (SALT) per year. This is to cover liaison, training, preparation of resources, administration, target setting, report writing and attendance at annual reviews.
• 60 minutes of direct SALT per week. Y is to receive these in two 30 minutes sessions per week.
31. Y’s EHC Plan also contained the following social care provision:
• Two hours per day of respite (Monday to Friday during term time) until the full EOTAS package is put into place.
• Four hours per week of support from a Personal Assistant delivered as direct payments during term time and 8 hours per week of direct payments during school holidays.
32. On 1 June 2023, the Council provided its final response to Mr and Mrs X’s complaint. The Council did not uphold the complaint and said Y was supposed to receive the specialist provision at school but did not attend. The Council said the expectation was that Y’s school would offer education as the Council was funding Y’s placement there.
33. Following the SEND Tribunal and Y’s new EHC Plan, Mr and Mrs X contacted the Council to chase up the new provision for Y.
34. The Council put in place tutoring of 9 hours per week in early June 2023. In mid-June 2023, the Council put in place direct payments to fund the OT, SALT, Lego therapy and swimming. In late September 2023, the Council increased Y’s direct tutoring to 15 hours per week. However this teacher missed several sessions without providing a reason so Y did not receive the full tutoring. In January 2024, this tutoring service ended and Y started to receive their full hours of tutoring from January 2024. The Council provided Y with a laptop and refunded Mrs X for the costs of a printer.
35. In response to my enquiries, the Council has confirmed it had not provided the following:
• Hydrotherapy sessions. The Council said it could not find a setting where Y could attend hydrotherapy sessions and provided details of the places and providers it had contacted. Mrs X said she believed there were settings which could offer this provision to Y.
• It had not paid Mrs X for headphones she purchased for Y and added this to the direct payments.
• It had not put in place a second adult for all time of Y educational provision. The Council said Mrs X had not asked for this and there was no definition in the EHC Plan about what the second adults role was.
• The Council provided Y with a laptop and refunded Mrs X for the costs of a printer. The Council said it had refused to provide Y with an iPad at Mrs X’s request.
36. Mr and Mrs X remained dissatisfied and complained to the Ombudsman. Mr and Mrs X said Y was still missing some provision in their EHC Plan. This included parts of the tutoring, social care provision, hydrotherapy, and IT equipment (including an iPad).

Analysis

37. Following the SEND Tribunal in May 2023, the Council sent an updated EHC Plan to Mr and Mrs X on 16 May 2023. At this point the Council should have put in place all of the provision listed in Y’s EHC Plan. Failure to do so was fault.
38. From June 2023, the Council had put in place direct payments for Y to fund OT, SALT, Lego Therapy, play therapy, psychoeducation sessions, emotional literacy and swimming. I have addressed some of the other provision Y was supposed to receive below:

Tutoring

39. Y was supposed to receive 32.5 hours per week of education from LSA and tutors. Initially the Council put in place some tutoring in June 2023, however this only amounted to 9 hours per week. This was increased by December 2023, however there were issues with some of the tutors attending sessions with Y so Y did not receive all of the tutoring they should have. It was not until January 2024 that Y started to receive their full package of tutoring. This was fault.
40. As a result Y has had to wait much longer than they should have to receive their package of education.

IT equipment

41. Y’s EHC Plan says the Council will provide a computer, printer and headphones. The Council has provided a laptop, refunded Mrs X for a printer but has not added the costs for headphones to Y’s personal budget. This was fault.
42. Mrs X argues the Council should also provide Y with an iPad. Y’s EHC Plan says Y should be provided with resources as recommended by the teaching staff to deliver the curriculum as would ordinarily be available within a school. It does not say Y should be provided with an iPad. The Council has considered Mrs X’s request for an iPad and declined. I have not found the Council at fault for how it came to this decision. There is no explicit requirement for it to provide Y with an iPad.
43. Mrs X also has said the Council has not provided a mouse for Y. While the EHC Plan does not mention a mouse specifically, it does say Y should have the resources as recommended by the teaching staff to deliver the curriculum as would ordinarily be available within a school. The Council should decide whether this should include the costs for a mouse and if so add this to Y’s direct payment along with the cost of headphones.

Second adult

44. The Council has not provided Y with a second adult. The Council said Mr and Mrs X did not ask for this, however as this provision was listed in Y’s EHC Plan the Council should have provided it to Y. Failure to do so was fault.
45. Y has missed out on having this provision and has not had the support of a second adult.

Hydrotherapy sessions

46. The Council has not put in place the hydrotherapy sessions. The Council has contacted several providers in the surrounding areas to try to source this provision. Unfortunately nearby swimming pools were unable to offer this provision. The Council did contact the pool near to where Mr and Mrs X live but this pool only provided aquatic therapy and not hydrotherapy. The Council said it could offer this should Mr and Mrs X want to proceed with this instead.
47. The Council did manage to find a pool which could provide the sessions, however this was 40 minutes away from Y’s home. On balance I am satisfied the Council has offered Mr and Mrs X this provision. I recognise that Mr and Mrs X would not find travelling convenient but given the limited number of pools which can offer this provision I am satisfied the Council has taken sufficient steps.

Social care provision

48. In relation to the social care provision in Y’s EHC Plan, the Council has not provided evidence this was put in place. This was fault.
49. As I have found the Council at fault for delaying and in some cases not putting in place the provision listed in Y’s EHC Plan, I need to consider what injustice this has caused. Y should have had the full amount of provision in place by mid-May 2023, when the EHC Plan was finalised following the SEND Tribunal. It was not until January 2024 that most of the provision was in place and even then there were still parts of the provision missing. Y has missed out on provision they otherwise should have received to support them with their education.
50. Mr and Mrs X have suffered injustice. Following the SEND Tribunal they have been in contact with the Council asking it to put in place Y’s provision. I am satisfied that having to pursue the Council further after the matter was settled at the SEND Tribunal and seeing that their child was not getting the support they were entitled to has caused them distress.
51. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In coming to a suitable figure I have considered that Y was due to receive provision through the summer holidays as their curriculum covered 45-52 weeks of the year. Y is also a child with special educational needs and required a significant amount of support. I have also considered that over the period of May 2023 to January 2024 there was a gradual implementation of provision for Y.

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Agreed action

52. Within one month of my final decision, the Council agreed to carry out the following:
1. Provide a written apology to Mr and Mrs X for failing to put in place the provision in Y’s EHC Plan following the SEND Tribunal.
2. Pay Mr and Mrs X £200 per month from February 2024, until the Council puts in place the social care provision listed in Y’s EHC Plan.
3. Pay Mr and Mrs X, for the benefit of Y’s education, £2,000 to recognise the lost special educational provision and social care provision between mid-May 2023 and January 2024. This figure also includes the fact the Council did not put in place at all the second adult who was supposed to be in attendance with Y for their educational provision.
4. Pay into Y’s personal budget the cost of headphones and consider whether it is appropriate to do the same for the cost of a mouse.
5. If still appropriate to do so, (i.e. if this provision is still listed in Y’s EHC Plan) put in place the second adult.
6. Pay Mr and Mrs X £300 for the distress caused to them for the delays in putting in place Y’s provision following the SEND Tribunal.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation and found the Council was at fault and this has caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman