The Ombudsman's final decision:
Summary: Ms X complained the Council failed to ensure her nephew, Mr N, received some of the provision specified in his Education, Health and Care (EHC) Plan. The Council was at fault when it failed to ensure some of the special educational provision in Mr N’s EHC Plan was provided. This led to Mr N missing out on support he required and caused Ms X distress and frustration. The Council was also at fault in the way it handled Ms X’s complaint. It has agreed to apologise, pay Ms X and Mr N £4,000 and make service changes.
- Ms X complains the Council failed to ensure her nephew, Mr N, received the provision in his Education, Health and Care (EHC) Plan between July 2019 and July 2020. Specifically, Ms X says Mr N did not receive the Speech and Language Therapy (SaLT), Art Therapy, Cognitive Behavioural Therapy (CBT), Occupational Therapy (OT) and 1:1 support.
- Ms X says that as a result, Mr N has been disadvantaged whilst at college.
The Ombudsman’s role and powers
- 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 decision statement.
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I spoke to Ms X and considered her view of her complaint.
- I made enquiries of the Council and considered the information it provided. This included Mr N’s EHC Plans, the Council’s daily case records for him and complaints correspondence.
- I considered the Ombudsman’s Guidance on Remedies.
- I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The law and statutory guidance
- The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ gives more details about how councils, schools and others should carry out their duties.
- Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
- The Council is responsible for securing the specified special educational provision for the child. This means making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process. These duties are non-delegable and other than for the period when the emergency measures under the Coronavirus Act 2020 were in place (see paragraph 15), a council cannot discharge its duty by showing it tried but failed to put the support in place.
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
- Under the Coronavirus Act 2020 the Secretary of State issued a notice which changed the key section 42 duty in the Children and Families Act. The change meant the absolute duty of councils under that Act to secure or arrange the educational provision set out in an EHC Plan, was temporarily modified to a duty to use ‘reasonable endeavours’ to do so. The changes under the notice were applicable from 1 May to 31 July 2020.
- In March 2020, all schools were ordered to close, retaining some staff to provide education for the children of key workers and some ‘vulnerable’ children. These included children with an EHC Plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils to carry out a risk assessment with children who had an EHC plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
- Mr N has autism spectrum disorder (ASD), language and communication difficulties and experiences severe anxiety. He attends a post-16 college and has had an EHC Plan for a number of years.
- When schools and colleges closed in March 2020, Mr N stopped attending college.
- The EHC Plan in place when these events took place was dated February 2019 and included the following provision:
- 1:1 support from a support assistant experienced in working with young people with special educational needs (SEN) together with further training in supporting young people with the specific type of ASD Mr N has. The support assistant would also require training from Mr N’s Speech and Language Therapist;
- 25 hours of Speech and Language Therapy (SaLT) a year in college to be delivered weekly during term-time;
- support and training to college staff from the Speech and Language Therapist to upskill them in supporting people with Mr N’s conditions and to advise on what modifications were required when teaching him;
- an occupational therapy programme to be written by an Occupational Therapist (OT) in relation to sensory issues, motor skills and independent living skills;
- 20 x one hour sessions delivered once a week by an OT;
- support for Mr N’s emotions and anxiety from a professional with Cognitive Behavioural Therapy (CBT) training; and
- therapy by a trained art or drama therapist to help Mr N manage his anxiety and develop emotional resilience.
- Ms X was concerned the support assistant was not trained to support young people with Mr N’s specific ASD traits. The Council said the College has informed it that the assistant had prior experience working with young people with SEN. The Council also stated the assistant had completed a one day training event on working with Children and Adults who had Mr N’s specific type of ASD, a course approved by the British Psychological Society. The assistant was now attending Mr N's SALT sessions to enhance their knowledge of communication skills.
Speech and Language Therapy
- In May 2019, the College informed the Council that Mr N’s Speech and Language Therapist was leaving but alternative provision would be in place for the start of the new college year in September. However, on 6 September, the College informed the Council that no alternative provision had been identified.
- The College confirmed at the end of February 2020 that it would provide Mr N with 25 hours of SALT this academic year in line with his EHC Plan. The College also confirmed that Mr N was receiving SaLT on a weekly basis.
- The College informed the Council at the end of August 2019 that OT and CBT would be in place for Mr N from September 2019. Shortly afterwards, the College informed the Council that it was now unable to provide OT or CBT. The College agreed to give Mr N access to a counsellor in the interim whilst therapists for CBT, OT and Art were sourced by the Council.
- On 4 November, the Council arranged for a private service, Centre Y, to deliver OT for Mr N. Mr N had one session and then the therapist went on sick leave. Centre Y was unable to provide interim support and Mr N was put on the waiting list. At the end of January 2020 Centre Y informed the Council that Mr N's OT would start again in February when Mr N's therapist returned.
- Mr N's therapist did not return to work. The Council began to source an independent OT. On 4 March the Council found another provider and Mr N began to receive OT. This support continued during lockdown on a modified basis.
Cognitive Behavioural Therapy
- The College informed the Council that CBT would be in place for Mr N from September 2019. However, at the start of term the College said it could not provide it.
- The Council approached two groups which provided CBT but they did not have any availability. The Council approached a third group which stated Mr N did not meet the criteria for support.
- In May 2020, at Ms X’s request, the Council make a referral to a fourth CBT provider. This provider agreed at the end of September 2020 to carry out an assessment.
- The Council approved Centre Y to provide Art Therapy Support on 16 March 2020. However, following the start of lockdown on 23 March, the art therapist assigned to Mr N emailed and postponed Mr N's assessment.
- On 4 May, the therapist sent a second email which said “The central process of Art Therapy does not lend itself easily to on-line/ remote working. Certain clients/ myself have managed the transition well, however those clients already have a face to face relationship with me. With new referrals I am finding myself having to be very realistic with who I can offer it to/ and who would benefit currently". As a result, Mr N did not received any art therapy in the college year 2019/20.
- Because Mr N did not have access to OT, CBT or Art Therapy, the college offered him counselling sessions. Mr N began to attend; however, on 27 February, at Mr N’s annual review, Ms X said she was unhappy with the counselling because the counsellor had no experience in Mr N’s specific type of ASD. Ms X stopped the counselling.
- On 16 March, the Council approved funding for Mr N to receive counselling at Centre Z. This began online on 7 April and is planned to move to face-to-face once lockdown ends.
Risk assessment when schools and colleges closed
- The legislation stated that when schools and colleges closed in March 2020 as the country went into lockdown, councils must carry out a risk assessment with children who had an EHC plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
- There is no evidence the Council carried out a risk assessment with Mr N. This is not in line with the legislation and is fault.
Securing the provision in Mr N’s EHC Plan
- The Council is responsible for making sure that arrangements specified in the EHC Plan are secured. Prior to the Coronavirus Act 2020, the duty was absolute. Councils could not say they had used ‘reasonable endeavours’ to discharge it to ensure provision was in place.
- The Coronavirus Act 2020 meant that, from 1 May to 31 July 2020 councils only had to show they had made ‘reasonable endeavours’ to discharge the duty to provide the support in EHC Plans.
- Although the statutory period came in on 1 May 2020, the Ombudsman’s general view is that we will not criticise a council for not securing the full provision in a young person’s EHC Plan from 23 March to 1 May. This is because the exceptional circumstances at the time often made it impossible for support to be provided. However, we will consider each case on its individual merits.
- The Council has demonstrated Mr N’s 1:1 support assistant had training in working with young people with SEN and had completed some training in supporting Mr N’s specific type of ASD. This was in line with the support specified in Mr N’s EHC Plan. There was no fault.
- Mr N’s EHC Plan specified he should receive 25 hours of SaLT a year. This was to be provided weekly during term-time. Mr N’s EHC Plan also specified he should receive OT on a weekly basis.
- Mr N did not receive any SaLT or OT from September 2019 to March 2020. This was not in line with his EHC Plan and is fault. From March 2020 onwards, Mr N received this support, albeit in a revised format because of lockdown. Therefore, during this period, the Council satisfied the requirement to use reasonable endeavours to secure the provision in Mr N’s EHC Plan.
- Mr N’s EHC Plan also specified the Speech and Language Therapist and Occupational Therapist provide plans and training to upskill Mr N’s teachers and support assistant to effectively support Mr N. Because the Council failed to secure this provision prior to March 2020, the teachers and staff at the college did not receive the training required to support Mr N in line with his EHC Plan. This too is fault.
- Mr N’s EHC Plan specified he receive CBT and Art Therapy. Mr N did not receive these therapies for the 2019/20 college year. For the period September 2019 to March 2020, the Council had an absolute duty to secure this provision. Its failure to do so was fault.
- From March to July 2020, the Coronavirus Act allowed councils to use reasonable endeavours to secure provision in an EHC Plan. The Council continued to make attempts to secure CBT during this period. In addition, it secured a different type of counselling for Mr N whilst it secured CBT. Therefore, there was no fault.
- However, in relation to Art Therapy, the Council made no efforts prior to lockdown to secure this. As a result, this meant the art therapist could not work with Mr N after lockdown was imposed. The Council took no action to follow this up or to determine whether another therapist would agree to work with Mr N. The Council did not use its best endeavours to secure this provision in lockdown. This is fault.
Council’s complaint handling
- The Council believes it did not have to respond to Ms X’s complaint because she had appealed to the SEND Tribunal. These are separate matters and the fact Ms X had appealed did not mean the Council was absolved from the requirement to deal with her complaint. And even if the Council was justified in taking this position, it should have informed her of its reasoning. The Council was at fault.
Injustice to Mr N
- Case law has established we cannot look at events which happened, including ongoing injustice caused by missed provision, from the date someone’s appeal rights are triggered. The Council issued Mr N’s final amended EHC Plan in September 2020. As a result, I cannot investigate events from this date including the injustice he was caused by any failure by the Council to ensure the provision specified in his EHC Plan was provided.
- The fact that Mr N has an EHC Plan means that he has a need for special educational support in order to be able to interact and achieve at college to the best of his abilities. Mr X has not only missed out on direct support from the therapy he needed, he has also missed out on indirect support. This is because his teachers and support assistant have not received the training they required from the Speech and Language Therapist and OT to help Mr N.
- In relation to the art therapy, on the balance of probabilities, it is likely it would have been possible for Mr N to have received this during lockdown if the Council had promptly secured it as it should have done from when his EHC Plan was put in place in February 2019. This is because the art therapist said she was still able to work with some clients who she had been teaching prior to lockdown.
- The fact that Mr N missed out on essential support means that an already vulnerable young person has been further disadvantaged. The Council’s failure to carry out a risk assessment with Mr N to determine if his needs could be met at home only adds to this injustice.
- Ms X has also been caused an injustice because she has experienced distress and frustration by the Council’s failure to support Mr N properly, both in securing the provision Mr N needs and by failing to carry out a risk assessment to determine if his needs could be met at home. She has also been caused unnecessary time and trouble, as well as delay, in having to complain to the Ombudsman. This has been further compounded by the Council’s failure to provide her with a final response.
- The Council should apologise to Ms X and Mr N for its failure to provide Mr N with the support he needed and the distress and frustration this has caused Ms X. The Council should also make them a financial payment to recognise the injustice they have been caused.
- Within one month of the date of the final decision statement, the Council has agreed to:
- apologise to Ms X and Mr N for its failure to provide Mr N with the support he needed and the distress and frustration this has caused them;
- pay Ms X £300 to remedy the distress, frustration and unnecessary time and trouble she experienced; and
- pay Ms X, on behalf of Mr N, £4,000 to remedy injustice caused the loss of SEN provision required by his EHC plan. This should be used as she feels best to support his social and educational needs. In coming to this figure, I have taken into consideration, and used, different tariffs to acknowledge the changes made by the Coronavirus Act 2020 to the Council’s duty to secure the provision in Mr N’s EHC Plan.
- There was fault which caused Mr N and Ms X an injustice. The Council has agreed to my recommendations and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman