Summary: Mrs X complained the Council failed to ensure her child, F, received the provision set out in their Education, Health and Care (EHC) Plan. Mrs X said F’s school employed a tutor who was not suitably qualified or experienced to support F’s needs. The Council was not at fault. The Council met its duty to ensure the school delivered the provision outlined in F’s EHC Plan. It appropriately supported Mrs X and the school following her complaint.

The complaint

1. Mrs X complained the Council failed to ensure her child, F, received the provision set out in their Education, Health and Care (EHC) Plan. Mrs X said F’s school (the School) employed a tutor who was not suitably qualified or experienced to support F’s needs. Mrs X said F’s behaviour and relationships with their peers regressed as a result.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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(a), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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(it), as amended)
6. 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.

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How I considered this complaint

7. I spoke to Mrs X about her complaint.
8. I considered the Council’s response to my enquiry letter.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

10. Children with complex needs may require an Education, Health and Care Plan (EHC Plan). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
11. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
12. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.
13. Once the council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.
14. The Ombudsman cannot investigate the council’s decision whether to conduct an assessment, nor can it investigate the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).
15. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the council to deliver the provision within a Plan.
16. Councils must review an EHC Plan every twelve months. Reviews must focus on the child’s progress towards targets in the Plan and on what changes might need to be made to help the child achieve those outcomes. Councils can require a school to convene and hold a review meeting on their behalf. The Special Educational Needs and Disability Code of Practice says reviews are generally most effective when led by the school. The council must be invited to attend a review meeting.
17. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
18. Decisions to amend or cease a plan can be appealed to the SEND Tribunal.

Applied Behavioural Analysis (ABA)

19. ABA refers to interventions that are developed from a branch of science called behaviour analysis. Behaviour analysts examine the causes and consequences of behaviour and develop interventions based on that information.
20. ABA is used for children with Autism and is recognised to be most effective when used intensively. It can help extinguish undesirable behaviour and reinforce desirable ones. It can help improve a child’s toileting behaviour, eating behaviours, speech and sleeping routines. ABA also works to build on a child’s strengths with emphasis on communication, social interaction and playing skills.

Transfer of EHC Plans

21. The Children and Families Act sets out a council’s duty in transferring EHC Plans to another council when it becomes responsible for the child. The law says the old council shall transfer the EHC Plan to the new council on the day of the move, or within 15 days of becoming aware of the move.

What happened

22. Mrs X has a child, F, who has Autism. In 2016, the records show F’s identified needs were being met by Applied Behavioural Analysis (ABA) combined with speech and language therapy and occupational therapy.
23. F started primary school in September 2016 but did not receive any ABA support. F’s behavioural issues increased, and the School asked that F attend on a part-time basis.
24. In 2016, the Council issued F an EHC Plan. However, Mrs X was unhappy with the lack of provision for ABA support in the plan and appealed to the SEND tribunal. The tribunal upheld Mrs X’s appeal and ordered the Council to amend F’s EHC Plan. The tribunal said F would benefit from an intensive ABA strategy supported by an ABA tutor.
25. The Council re-issued F’s EHC Plan in March 2017. The plan said F required a programme based on the principles of ABA to support them through the school day. It said a certified ABA consultant would devise the programme, supported by a trained ABA tutor who had received Registered Behavioural Technician (RBT) certification. The School implemented the provision outlined in F’s EHC Plan for the rest of the school year.
26. In July 2018, F’s ABA tutor left the School. The School recruited a new ABA tutor for F, to start at the beginning of the new school year in September 2018, which was year 2 for F. At the point of recruitment, the tutor was not RBT certified, however they received their certificate and qualification in November 2018
27. In December 2018, the School held an emergency annual review for F following concerns raised by Mrs X about their progress. The Council and the ABA consultant attended. However, Mrs X did not want the meeting to be an annual review as she wanted those to be kept for the end of the school year. The minutes show Mrs X shared concerns that F’s behaviour had regressed since the start of the school term. Mrs X raised concerns about the ABA tutor’s suitability for the role with F and felt the ABA consultant and F’s previous tutor should have been involved in the recruitment process for the new tutor. Mrs X said the School should have followed the orders of the tribunal in recruiting a qualified ABA tutor as outlined in their EHC Plan.
28. The minutes recorded the ABA consultant gave her views and said the ABA tutor was not qualified to support F, and they had taken a long time to complete the RBT certification. The ABA consultant said F needed a tutor with experience which the tutor did not have. The ABA consultant added that F’s behaviour had not got worse, but that they were facing new challenges in a year two environment.
29. The minutes show the School were surprised about the ABA consultant’s comments and said it not previously been made aware of the concerns regarding the ABA tutor. The School said it had discussions with Mrs X during and after the recruitment process for the new tutor. It said it was not standard procedure to have outgoing members of staff on interview panels. The School also said there were very few suitable applicants for the role.
30. Several actions points came as a result of the review meeting including the School applying for additional funding so the ABA tutor could undertake extra training. The ABA consultant put forward further actions including the ABA tutor collecting data on F for analysis, fortnightly skype meetings with the tutor, and for the tutor to attend specific training sessions.
31. Records show Mrs X received an email from the ABA consultant in February 2019 which was also sent to the School. The ABA consultant said they were concerned with the regression of F’s behaviour and felt some changes were required with how to manage that behaviour. The ABA Consultant made some suggestions on techniques and strategies on how to better manage F’s behaviour.
32. Mrs X formally complained to the Council in February 2019. Mrs X complained the Council failed to ensure the provision outlined in F’s EHC Plan, specifically the provision of ABA by an experienced and qualified tutor with RBT certification. Mrs X said the School hired an inexperienced ABA tutor who did not meet the requirements for the role. She said F’s behaviour had regressed as a result of the inexperience and inadequate techniques and strategies implemented by the ABA tutor. Mrs X said the School told her to go back to the tribunal if she was unhappy, which she said was an inadequate response.
33. The Council responded to Mrs X in March 2019. It said it understood Mrs X was aware the ABA tutor was not qualified in RBT on appointment but agreed with the School’s proposal that they undertook training to gain the qualification. The Council said the tutor has now gained her RBT certification. The Council said the School did not agree with Mrs X’s assertion that F had regressed. It said they were making excellent progress and the ABA strategies were successfully managing their behaviour. However, the Council said it would ask an ASD (autism spectrum disorder) outreach specialist to provide a report on F’s behaviour. The Council said it had agreed extra funding for the ABA tutor to work more closely with the ABA consultant. The Council said it would continue to work with Mrs X to ensure F’s needs were met.
34. The ASD outreach officer wrote her report on F in April 2019. She concluded from her observations that the ABA tutor was working effectively to support F. The officer said the School was satisfied with the ABA tutor’s employment and said they were fulfilling their role as ABA therapist within the School. The officer said F was making at least expected rates of progress in all curriculum areas. She said that F appeared to have a positive relationship with the ABA tutor.
35. The ABA consultant also wrote a report on F’s progress in April 2019. The consultant said some of the techniques and strategies suggested were difficult to implement with F because of gaps in the ABA tutor’s training. However, the consultant noted various points which were going well and some points for the ABA tutor to work on.
36. The ABA consultant wrote her end of year report on F as part of their annual review. The consultant wrote that F had progressed significantly since their ABA programme was first introduced but progress during year two did not reflect the gains from year one. However, the consultant said there were also positive signs of development. The consultant said the current provision outlined in F’s EHC Plan should remain in place for the foreseeable future.
37. In May 2019, Mrs X decided she did not want F to remain at the School and decided to look for alternative provisions. Mrs X told the Council she had accepted a new job in a different council area and therefore would relocate F to a school in that area. Mrs X asked the Council to liaise with the proposed new school until she physically moved there.
38. The records show Mrs X sent F’s EHC Plan to the proposed school and liaised with it about F’s needs and potential start date. The new school told Mrs X it was unlikely F would be able to start after the May half term holidays due to the transition planning which would be needed and because the school was full. An officer from the new council area attempted to liaise with the Council about Mrs X’s proposed move and asked for copies of F’s EHC Plan and tribunal orders. However due to a mixture of missed calls and periods of annual leave during May 2019, correspondence was limited.
39. At the end of May 2019 Mrs X told the Council that because it had not appropriately liaised with the new school, F did not have a place and therefore she was unable to commence employment.
40. In June 2019 Mrs X escalated her complaint through a solicitor. The Council respond to each of Mrs X’s points. It said F’s ABA programme was devised by an ABA consultant and it provided funding for full time one to one support. It was satisfied the ABA tutor meets the requirements as set out in F’s EHC Plan. The Council said it had put significant resources into reviewing F’s placement to ensure their needs were being met. It said there was no evidence F’s needs were not being met by the School. The Council said that since Mrs X informed it that she was no longer moving to the new council area, it was in the process of arranging a date for another annual review.
41. The records show that F now has a new school named in their EHC Plan, and the Council has attended meetings with the new school to assist in the recruitment of another ABA tutor.
42. Mrs X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

43. F’s EHC Plan states their needs will be supported by a trained ABA tutor who has RBT certification, as per the tribunal’s orders. It was the School’s responsibility to conduct its own recruitment of the ABA tutor and the Ombudsman cannot investigate the actions of the School. Therefore, I cannot find the Council at fault for the School’s decision to employ the ABA tutor. However, the records show that Mrs X was consulted by the School during its recruitment of the ABA tutor and, on balance, I find she was aware that, at the time of appointment, the tutor did not hold the RBT certification.
44. The Council first became aware of Mrs X’s concerns about the adequacy of the ABA tutor in November 2018. The Council were unaware of events prior to this point and I would not expect it to carry out checks between annual reviews unless it was made aware of issues. By the time it was made aware of Mrs X’s concerns, the ABA tutor had been in place at the School since September 2018 and had already gained her RBT certification. The EHC Plan did not state that the tutor should have a set number of years’ experience, therefore they met the criteria as outlined in F’s EHC Plan.
45. The records show the School arranged an emergency review in response to Mrs X’s concerns. Following that review the Council took on board Mrs X’s concerns, made extra funding available and asked an ASD outreach worker to observe F and report back to it. I have considered the content of the ABA consultant’s reports. While they made regular comment on the tutor’s lack of experience, there is no evidence the consultant decided they were not fit for the role. The evidence shows the consultant worked closely with the tutor to improve the implementation of the ABA programme. F made some positive progress throughout the year which is evidenced in the consultant’s annual review report at the end of the school year.
46. Mrs X says the tutor was not experienced enough to meet F’s needs. However, there was no guarantee that a different tutor, even with experience in ABA would have made a significant difference. The Council took appropriate action in supporting Mrs X and the School following her complaints to ensure it was satisfied the provision in F’s EHC plan was met. I have found no evidence which suggests otherwise. The Council was not at fault.
47. Mrs X also complained the Council failed to support F with moving to a new school in a different council area. There is no legal duty for the Council to secure F with a placement in a different council area. The law says the Council has a duty to cooperate with the other council by transferring the EHC Plan once it becomes responsible for the child. However, that duty does not start until the day the child transfers to the new council area. The records show Mrs X told the Council of her intention to move and she had already sent F’s EHC Plan to the proposed new school. However, there was no offer of a place at the new school because it was already full, and it needed a period of transition planning before it could admit F. The new council at no point became responsible for F, and the Council was not told of a set moving date. Therefore, the Council was not at fault.

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Final decision

48. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman