Summary: Mrs X complains that the Council failed to ensure therapies and assessments detailed in her son, D’s, Education, Health and Care Plan were provided. The Ombudsman finds there was avoidable delay, missed provision for D and time and trouble caused to Mrs X in chasing this up. We have made recommendations for an apology, financial remedy and service improvements.

The complaint

1. Mrs X complains that Buckinghamshire County Council (the Council) in respect of their son, D:
1. ceased to provide Speech and Language Therapy and Occupational Therapy in 2015;
2. delayed in implementing provision ordered by The Special Educational Needs and Disability (SEND) Tribunal on 4 July 2019; and
3. failed to communicate in a timely manner during the tribunal proceedings.

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What I have investigated

2. I have investigated part b) of the complaint only. I am unable to investigate part a) and part c) for the reasons given in Paragraph 25.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
7. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

8. Under the information sharing agreement between the Local Government and Social Care Ombudsman (LGSCO) and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with them.
9. 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)

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How I considered this complaint

10. I have spoken to Mrs X, made enquiries of the Council and considered the comments and documents it provided in response.
11. I wrote to Mrs X and the Council with my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

12. Mrs X’s son, D has special educational needs. In 2015 the Council ceased to provide speech and language therapy and occupational therapy support. In December 2018 Mrs X appealed to SEND about the lack of provision. On 4 July 2019 the Tribunal upheld the appeal and ordered the Council to include the therapies in D’s EHCP and complete a disability technological assessment.
13. The Council issued a final EHCP on 29 July 2019. This included fortnightly sessions of speech and language therapy and half termly sessions of occupational therapy. The EHCP also detailed the need for a full disability technological assessment with regards to computer use for the purpose of supporting D’s handwriting and communication needs. No timescale was set for the completion of this assessment.
14. Mrs X says she spoke with D’s school in October 2019 and was advised the specified provision was not in place for D. On 12 November 2019 Mrs X informed the Council the disability technological assessment had not been completed. Mrs X made a formal complaint on 27 November 2019. In its complaint response the Council said D was placed in an out of county specialist school and it encountered difficulties in finding a therapist due to commissioning arrangements. The Council also acknowledged that it had not completed the disability technological assessment and the matter had been overlooked.
15. The Council began delivery of speech and language therapy on 6 November 2019 and occupational therapy on 8 November 2019. The disability technological assessment was completed by an ICT facilitator on 3 December 2019. The report was completed a week later. The Council then provided Mrs X with a temporary laptop and a complete laptop suitable for D’s use was provided on 8 January 2020.

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Analysis

16. Time limits following a SEND Tribunal order are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014. This states that where the Council has been ordered to amend an EHCP, it must do within five weeks of the order being made. SEND ordered changes on 4 July 2019 and the Council issued a revised final EHCP on 29 July 2019. There is no fault here.
17. The Council failed to ensure the therapy provision ordered by the tribunal could be delivered to D upon issue. The Council began delivery of speech and language therapy on 6 November 2019 and occupational therapy on 8 November 2019, which in its view was a “small delay”. This was due to D not being able to access the provision through therapists on-site at his school. The Council has a legal duty, under Section 42 of the Children and Families Act 2014, to ensure that the special educational provision specified in section F of an EHCP is delivered once it is issued. This meant the speech and language therapy sessions and occupational therapy sessions should have started once the final EHCP was issued on 29 July 2019. Taking account of the summer holidays, the provision should have been in place by the time D returned to school in September 2019. Failure to do so was fault. The therapies were key intervention to support D at school which were missing for approximately seven weeks.
18. The Council failed to complete a disability technological assessment in a timely manner. The assessment was completed by an ICT facilitator on 3 December 2019. The report was completed on 11 December 2019. The Council provided Mrs X with a temporary laptop in the first instance and a complete laptop was provided on 8 January 2020. The Tribunal order did not specify a timescale for the completion of the assessment however the Council should have agreed a date for the completion of the assessment when it issued the final EHCP; it did not. If Mrs X had not chased the Council about this the delay would have been longer. It would have been reasonable for the Council to have completed the assessment in early September 2019. Because of the delay D missed out on provision he was entitled to.
19. The delays also caused time and trouble for Mrs X as she had to chase up the Council to ensure the therapies and assessment specified within the EHCP was put in place.
20. Mrs X also complained that the disability technological assessment was inadequate and not carried out by a qualified ICT facilitator. She says the facilitator failed to consider D’s needs and supplied him with a laptop without software or child protection controls. In response to our enquires the Council confirmed that the facilitator was suitability qualified to carry out the assessment and there is no reason to investigate this further. The assessment was carried out at D’s school with D and he was invited to share his views. The report provided a detailed response to D’s needs and the equipment he required. Whilst Mrs X may disagree with the assessment, I do not find fault in the process followed.
21. The Council has acknowledged that it initially issued a temporary laptop to Mrs X which had trial versions of the software D required. The complete laptop was issued on 8 January 2020. Mrs X signed the parental agreement which stated, “parents may want to install some parental control software to monitor and restrict internet use”. The agreement provided details of free software available to download. I do not criticise the action taken by the Council here and I am satisfied that Mrs X had the information she required to ensure child protection controls were installed on the laptop.

Agreed action

22. Within one month of this decision the Council will:
1. apologise to Mrs X and D for the fault in this statement;
2. make a payment of £300 to D for seven weeks of missed provision and for the delay in completing the disability technological assessment;
3. make a payment of £150 to Mrs X for her time and trouble in making this complaint;
4. put in place additional therapies for D according to how much support he missed.
23. Within two months of this decision the Council will:
1. consider whether its procedures are robust enough to ensure SEND orders are implemented in statutory timescales and tell us what action it has taken, or will take, to achieve this; and
2. review its commissioning arrangements for therapies for children in educational settings which are in a different county and tell us what action it has taken, or will take, to achieve this.

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Final decision

24. I have found evidence of fault causing injustice and the Council has agreed to my recommendations. I have competed my investigation on this basis.

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Parts of the complaint that I did not investigate

25. The events in 2015 and subsequent request for a reassessment of the EHCP are too long ago to investigate now. We consider it was reasonable for Mr and Mrs X to complain sooner. The Ombudsman has no jurisdiction where a parent has appealed to SEND from the date the appeal right arises until the appeal is completed. I cannot investigate Mrs X’s complaint about the Council’s communication during this period as it is inextricably linked to the appeal.

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Investigator's decision on behalf of the Ombudsman