Summary: Ms X complained that the Council failed to ensure all the provision in her son’s Education Health and Care Plan was put in place. We find that while there was some delay in putting in place some of the specific provision Ms X wanted, for the most part this was not the result of fault by the Council. In some cases there is evidence the support was provided. In others the Plan did not specify particular programmes to be used. There are two areas where support was lacking where the Council has agreed a remedy. The Council accepts it should have had more oversight of the provision and has provided details to the Ombudsman on improvements it has made in its procedures.

The complaint

1. Ms X complained that in relation to her son's Education Health and Care (EHC) Plan:
1. The Council carried out an incomplete needs assessment which failed to a) identify needs, b) obtain diagnoses, and c) identify the targeted support required to support her son with his difficulties, resulting in her having to fund assessments privately;
2. The Council failed to implement a recommendation for direct teaching by a literacy specialist by including it in her son's EHC Plan;
3. She had concerns about the delivery of provision set out in her son's EHC Plan, including extra provision agreed following the Annual Review in June 2018;
4. There were problems with the SEND Tribunal process;
5. There were delays in implementing the Tribunal Order issued in June 2019.

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What I have investigated

2. I have investigated the complaint that the Council failed to ensure the special educational needs support was put in place properly for Ms X’s son as follows:
1. after being agreed at his Annual Review meeting in June 2018;
2. as set out in his final amended Education Health and Care (EHC) Plan issued on 14 November 2018; and
3. following the Tribunal Order issued in June 2019.
3. As a result Ms X says her son has missed out on support he should have had including with handwriting, literacy, maths, sensory processing and Occupational Therapy.
4. I explain at the end of this statement why I have not investigated other parts of the complaint.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) 34(3), as amended)
6. 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)
7. 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)
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

10. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on provision for children with special educational needs. This final decision is the result of a review of my earlier decision. Ms X and the Council had an opportunity to comment on my further draft decision. I considered any comments received before making a final decision.
11. 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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What I found

Education Health and Care Plans

12. 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.
     
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. This says:
14. Councils must review EHC Plans at least every 12 months.
15. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
16. If the Plan needs to be amended the council should start the process of amending it without delay. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments
• tell them about their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
17. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
18. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)
19. A parent or young person may appeal to the SEND Tribunal about the special educational needs support set out in an EHC Plan. If the Tribunal orders the council to amend the Plan, the council must issue the amended Plan in line with the Tribunal Order within five weeks.

Background

20. Ms X and her husband have a son, G, who attends primary school, School 1. G has a developmental co-ordination disorder which affects his ability to organise, plan and carry out physical movements. He has high levels of anxiety. He also has problems with his vision and sensory processing, as well as diagnoses of ADHD, dyscalculia and dyslexia. He has an EHC Plan.
21. The EHC Plan issued in August 2017 included the following provision:
• School staff to follow the advice of the Occupational Therapy (OT) Service in helping G develop his motor skills
• An OT to provide four hours a term of monitoring, support and advice for staff to deliver the OT programme
• A daily sensory circuits programme as recommended by a physiotherapist
• Daily use of a sensory integration programme
• A number of particular approaches and strategies for teaching literacy and numeracy, including “a structured literacy programme delivered in small chunks little and often (eg at least three 15 minute chunks a day)”
• A weekly group to help with anxiety and social skills.
22. Although not set out in the EHC Plan, School 1 also provided an Individual Needs Assistant (INA) to give 1:1 support to G. G was also attending a sensory integration programme outside of school which Ms X was paying for privately.

Events from June 2018

23. An Annual Review meeting took place on 11 June 2018. There were discussions about literacy teaching, sensory integration programmes, handwriting, and keyboard skills. School 1 agreed to put forward a request to the Council for:
• extra funding for the school to provide direct teaching from a literacy specialist once a week
• a Personal Budget for the parents to obtain 24 sessions of sensory integration therapy.
24. The Council considered the request for extra funding at its SEN Panel in mid-July 2018. The Panel did not agree to increase funding as it considered the existing provision was enough to meet the outcomes in the EHC Plan. There was further correspondence about the requests for extra help with sensory integration between Ms X and the Council during July and August. In early August Ms X provided evidence of an assessment confirming G had dyscalculia. There were further referrals to the Panel, a case review in late August and advice from the OT service in early September.
25. After considering the information gathered the Council issued a draft amended EHC Plan on 17 September 2018.
26. Ms X responded to the proposed Plan on 25 September 2018. As part of her response she asked for the EHC Plan to include:
• the 1:1 support G received
• details of how much support with literacy and maths G would receive.
27. The Council considered these requests at the SEN Case Review Panel in early October 2018 and wrote to Ms X to say it would be issuing the final amended EHC Plan soon.
28. During October there was correspondence and discussions between Ms X, School 1 and the Council about the support that could be provided. The School and the Council sought information from the Brighton & Hove Inclusion Support Service, (BHISS) about what specialist literacy and maths support it could provide. This is the Council service that arranges specialist support. In early November 2018 the Council wrote to Ms X to suggest it could either wait to receive the confirmation from BHISS or issue a final EHC Plan without specifying how much literacy and maths support would be provided, and then issue a further final amended EHC Plan once it received the information it was waiting for. Ms X agreed to wait a few days.
29. On 6 November School 1 wrote to Ms X and the Council to confirm:
• G would receive two 30-minute literacy support sessions a week, starting that day
• G was receiving daily targeted maths support either in class or outside of class, monitored and supported by the School’s specialist maths teacher.
30. The Council issued the final amended EHC Plan on 14 November 2018. It included the following new provision in addition to the support it contained previously:
• direct teaching from a literacy specialist for one hour a week
• along with various approaches to numeracy, “a bespoke programme of study for maths created by the maths specialist teacher based at the school” and “targeted maths support by specialist maths teacher twice week for 30 minutes”
31. The new Plan did not contain provision for a Personal Budget for sensory integration therapy.
32. Ms X appealed to the SEND Tribunal in February 2019. She wanted the 1:1 TA support written into the EHC Plan. Among the extra provision she asked for was direct intervention from an OT, a further 30 minutes a week with a literacy specialist, direct Speech and Language Therapy, and 45 minutes a week sensory integration therapy. There was then continuing discussion between the Council and Ms X about amendments to the EHC Plan.
33. Following the hearing the Tribunal issued an Order on 28 June 2019 setting out the amendments the Council should make to the EHC Plan.
34. Around a month later Ms X unsuccessfully asked first for a review of the Tribunal decision and then an appeal to the Upper Tribunal, which was refused on 31 July.
35. The Council issued the final amended EHC Plan on 31 July 2019. It included the following provision:
• Embedded sensory diet with advice from the OT, formal termly meetings with parents and professionals to review progress and update plans
• OT to work directly with G 1:1 to develop his fine and gross motor skills, and where appropriate write programmes for school to provide support
• OT to have four hours a term for reviewing G’s needs (including one hour 1:1 session with G), planning, liaising with parents and school staff, writing notes and training staff
• six one-hour face to face sessions with the OT either in a small group or 1:1 on a programme for children with developmental co-ordination disorder (known as ‘COOP’ sessions)
• G “would benefit from activities to help develop visual processing”, these “to take place for ten minutes each day and form part of G’s sensory diet”
• help and support with handwriting skills, with various types of programme and methods recommended
• staff to continue with sensory circuits daily programme and follow sensory needs service advice on visual needs
• a programme to help G manage his own self-regulation, with examples of programmes given
• 17.5 hours a week 1:1 adult support in class alongside peers, in small groups and in some individual session in response to G’s learning needs
• a structured literacy programme delivered in small chunks little and often eg at least three 15 minute chunks a day, to be delivered by an experienced teacher/TA, overseen and planned by a literacy specialist teacher
• one hour a week direct teaching from a literacy specialist + 30 minutes for planning and preparation
• a bespoke programme created by a maths specialist teacher based at school + targeted maths support by a specialist maths teacher twice a week for 30 minutes each
• touch typing practice, with advice from the literacy support teach about programmes to use.
36. Regarding sensory regulation and sensory integration, the EHC Plan refers in some places to examples of programmes and strategies that could be used (Zones of Regulation or the Alert Programme). In other places it says G should have daily use of a particular programme, ‘Just Right’, with all adults working with him consistently using the language of ‘Just Right’. At the same time the Tribunal Order said there appeared to be broad agreement that the ‘Just Right’ programme was not necessarily right for G.
37. In mid-October 2019 the OT carried out a review of G’s needs and made recommendations to School 1 which then discussed them with Ms X.
38. The next Annual Review meeting was held in April 2020. Ms X raised concerns about the delivery of support in the EHC Plan and plans were made to ensure it was put in place.
39. There were then difficulties putting in place some of the face-to-face OT because of restrictions due to the COVID-19 pandemic.

Complaints

40. In mid-May 2019 Ms X made a formal complaint to the Council about failure to identify dyscalculia and dyslexia during the EHC assessment process and delays in dealing with the Tribunal process. She also complained that G was receiving only one of the two weekly 30-minute specialist literacy sessions set out in the EHC Plan. She said she had been paying for an extra 30-minute session per week with a dyslexia specialist. Ms X made a further complaint in early July about failure to put in place provision set out in the EHC Plan, in particular the sensory circuits and sensory breaks.
41. The Council replied to the complaint in mid-July 2019, saying the issues about the provision had been addressed at the Tribunal.
42. Around a month later, in August 2019, Ms X made another complaint referring to events dating back to 2017 and in some cases 2015, about lack of assessments and diagnoses, lack of funding for literacy specialist teaching, and failure to put in place some of the provision in the EHCP from September 2018. She also said she had paid for sensory integration therapy privately and wanted the Council to reimburse her costs.
43. The Council sent a stage 2 complaint response at the beginning of October 2019, although the letter was dated 1 August. The Council apologised for delay in responding. It did not agree to cover the costs of private sensory integration therapy or extra literacy specialist teaching as it said the Tribunal had decided this this provision was not necessary.
44. Over the next few months Ms X was in correspondence with G’s school and the Health Trust about failure to put in place OT provision in the EHC Plan.
45. On 22 February 2020 Ms X made another stage one complaint to the Council about delays in starting the handwriting programme, delay in allocating an OT, the cognitive orientation programme not being in line with the EHC Plan, lack of 1:1 support on days when G’s INA was not in school, and failure to always provide a sensory break.
46. She also raised issues regarding OT programmes and provision with the OT service directly.
47. After seeking further information from the school, the literacy support teacher and the OT service, the Council responded to the complaint in early May 2020 as follows. It:
• acknowledged some problems with a changeover of OT
• accepted sometimes G did not receive sensory breaks when staff were absent
• apologised for a delay of 18 months in the school delivering sensory circuits correctly and that between September 2018 and early March 2019 the provision was ‘on hold’
• appeared to accept there was some delay in implementing a specific handwriting programme but said despite this G had made progress
• accepted he needed more practise with touch typing
• agreed the Council would fund the six ‘COOP’ sessions
• agreed the new sensory integration programme agreed by the Tribunal had not been implemented but said the school was providing it through its own approach
• said School 1 said it was offering a range of visual perception activities as agreed at Tribunal but G needed more practice.
48. There was then further correspondence between Ms X and the Council about its response. In the course of these exchanges the Council apologised for delay in implementing the emotional regulation programme and said it would be working with the School to put this in place.

Analysis – was there fault causing injustice?

a) Provision following Annual Review meeting in June 2018

49. The Council has a duty to ensure provision set out in a final EHC Plan is put in place. The final amended Plan following the Annual Review meeting was not issued until 14 November 2018. Ms X may have wished for certain support to be provided sooner, but it is not for the Ombudsman to say what provision should be included in an EHC Plan. Any dispute about this is a matter for the Tribunal. I can consider whether there was any avoidable delay in issuing the final Plan which resulted in delay in putting the support in place.
50. If all stages take place within the required timescale following an Annual Review meeting the Council should issue an amended final EHC Plan within 12 weeks of the meeting. In this case it took around 20 weeks. The Council should have told Ms X within four weeks whether it intended to amend the EHC Plan or not. In this case the Council has confirmed it did not send such a notice to Ms X. But it has provided evidence showing it told her it would be amending the Plan and was considering the amendments the School requested. It kept in touch with her about the review process and the outcome. So I do not consider the lack of a formal notice caused significant injustice.
51. The Council received the Annual Review paperwork on 18 June 2018, prepared the papers for the SEN Case Review Panel on 5 July, and the Panel meeting took place on 18 July. This resulted in the Council agreeing some extra provision but a further Panel was needed, which took place on 25 July.
52. After the Council explained the outcome of the Panel to Ms X she provided a private report in early August with the diagnosis of dyscalculia. The Council gave Ms X the opportunity to respond to the Panel’s recommendations. There were continuing detailed discussions and exchanges of information between Ms X and the Council during August and September about literacy support, sensory circuits, OT, sensory integration programmes and personal budgets. Ms X also provided a new SALT report. Given the extent of the discussions between Ms X and the Council, some of which resulted in additional provision for Y being written into the EHC Plan, I could not conclude the delay in issuing the final EHC Plan was the result of fault by the Council.

b) Provision following the final EHC Plan issued in November 2018

53. Local authorities have the ultimate responsibility for ensuring the educational provision in an EHC Plan is arranged. It is not the Council’s role to continuously monitor the day-to-day provision within a school. However councils should have a mechanism for checking that when a new or amended Plan is issued, any outside specialist services are arranged to deliver the support required and the school has the provision in place. It should also follow up any concerns a parent raises that their child is not receiving the required support, to ensure it is provided.
54. Ms X complains the sensory circuits were not put in place properly until March 2019. The Council accepts there were delays in providing this. However it says based on the report of the June 2018 Annual Review meeting it understood the sensory circuit was being delivered. This item was included in the EHC Plan that applied before the Annual Review meeting in June 2018. The record of the Annual Review meeting shows the sensory circuits were being offered, but there were some problems with G’s engagement and the School was trying different methods of delivery. The Council says it was not aware they had stopped. However, in response to the Ombudsman’s enquiries, the Council recognised that its oversight of provision has not been to the standard it would have wished and said it was taking steps to improve its processes. It has accepted and apologised for the fact that the provision was ‘on hold’ from September 2018 to March 2019. I consider that if the Council had had proper mechanisms in place to ensure oversight of provision, as it says it should have done, it is likely it would have known earlier that the sensory circuits were not being delivered. I do not know when the sensory circuits would have started again if the Council had had proper checking mechanisms in place. But the Council should offer a financial remedy to recognise Ms X’s uncertainty and anxiety about this.
55. Under the November 2018 EHC Plan G should have had specialist maths support. Ms X says he received it intermittently in the autumn term of 2018 and not at all in the 2019 spring and summer terms. The Council has now provided evidence from the School showing Y was receiving a specialist maths programme during this time, his progress was being monitored and he was on track to achieve the outcomes in his EHC Plan. The Council says it was satisfied the School was delivering the maths support and monitoring and reviewing Y’s progress. Given this evidence, I do not find fault with the Council for failing to put the maths provision in place.
56. Ms X says there was delay in putting in place the 2 x 30 minute per week literacy support sessions. But evidence to the Tribunal from the literacy support teacher indicates that she provided the support and considered the progress G was making was appropriate. The evidence I have seen shows the provision was in place from November 2018. There is a great deal of correspondence between Ms X and the specialist literacy teacher about the detail of the teaching and G’s progress through to at least April 2019 and then again in September 2019.

c) Provision following Tribunal Order in June 2019

57. The Council issued the final amended EHC Plan on 31 July 2019, which is within the required time limit of five weeks from the Tribunal Order.
58. Ms X has complained about four main areas where she says provision was not put in place. These are OT, touch typing, the emotional regulation programme and literacy support. The Council obtained information from the OT service to respond to the allegations relevant to that service, as follows.
59. The Council accepts there was delay in ensuring an OT was in place to do direct work with G in relation to his co-ordination disorder. These are the COOP sessions. It says when it became aware of the shortfall it put matters right by offering six sessions with a private provider. This was a partial remedy for Ms X and G. But it does not take account of the expense and effort involved for Ms X in taking G to the sessions as they took place out of school. She had to take unpaid time off work to bring to the sessions. Also, Ms X says taking G out of school meant school staff supporting him did not have the opportunity to observe him and use what they learnt with G in the school setting. I therefore consider the Council should offer a financial remedy in relation to this part of the complaint.
60. Another area that comes under the OT service is the handwriting programme. Ms X complained there was a delay of six months in delivering sessions of a particular programme, ‘Speed Up’. The Council has recognised the delay but says when Mrs X raised concerns about the OT support not being put in place on 17 September 2019 it forwarded this to the OT on 26 September. The OT service told the Council it had identified an OT to go to school to set up the programme. In response to Ms X’s complaint, the OT service said the EHC Plan did not specify a timeline for providing these sessions. There were to be four sessions and they took place between the end of November 2019 and February 2020. In the meantime the school provided alternative handwriting programmes and the OT service considered G had made progress.
61. I note that the EHC Plan did not specify a particular hand-writing programme. So although the specific new programme did not start until three months into the autumn term I could not say this was fault by the Council. In any event, based on the information from the OT service, the sessions did take place and G received support in the meantime and made progress. I could not say what impact of any delay was and so it would not be appropriate to recommend a remedy.
62. Ms X complains of delay in implementing the new emotional regulation programme following the Tribunal decision. This appears to be partly as a result of confusion caused by lack of clarity in the EHC Plan about whether a new programme should be provided or whether to continue with the previous one (see paragraph 36 above). The Council has recognised and apologised for delay in putting the new programme in place. However the OT service in response to Mrs X’s complaint said the Just Right programme is a blend of the two other programmes that were referred to in the EHC Plan following the Tribunal decision. The OT service and the Council say the programme was personalised for G, and the School and the OT believed it was working for him. So even if there was some delay I do not have sufficient evidence to say this was a result of fault by the Council or to know what impact it might have had on G.
63. Regarding the literacy provision, Ms X complained to the Council that G was meant to receive support “little and often (eg at least three 15 minutes chunks a day” whereas his school plan refers to 30 minutes daily. However the literacy support teacher says she explained to Ms X in a meeting how this support was delivered to G flexibly, partly in the classroom and partly on his own, and Ms X did not object to this model. Ms X does not agree with this statement. However the precise details of how support is delivered is not a matter for the Ombudsman. Based on the evidence from the teacher involved I could not say there was a failure to make the provision.
64. Ms X complained the touch typing had not been happening in the way it should have been. The Council says the School reports that it has been happening but Ms X was not satisfied with the preferred programme. The School has provided copies of Y’s timetable showing the provision. So while there may be differences of view between Ms X and the school about methods of delivery I do not have enough evidence to say the Council has failed to ensure this aspect of the Plan is being delivered.
65. Ms X complained to Ombudsman that OT provision in relation to fine and gross motor skills was not specific enough in the EHC Plan and so it is not clear to her how the provision being made. She also says the OT service told her developing gross motor skills was not in its remit, but was a service for a physiotherapist to deliver and it was unclear why it was included in the EHC Plan as an OT provision. So it appears the problem lies with the content of the EHC Plan, which is a matter for the Tribunal, rather than the Ombudsman.

Summary

66. I recognise Ms X was not happy with the day to day provision of support within the School. The Council has acknowledged some delays in starting specific programmes within the School. But there were no clearly stated timescales in the EHC Plan for the particular programmes to start, and in some cases no clear instruction for specific programmes to be used. Either they were delivered or alternative methods which the professionals considered worked for G were put in place in the meantime.
67. But there are two areas where I consider there was an injustice caused by the Council’s lack of action which it should remedy. The first is in connection with the lack of sensory circuits. The second is in the lack of a full remedy for the delay in putting the COOP sessions in place.

Agreed action

68. The Council has agreed that to remedy the injustice caused it will offer Ms X the following payments:
• £300 to recognise the uncertainty and anxiety of not knowing when the sensory circuits would have resumed if the Council had had proper checking mechanisms in place;
• £300 to recognise Ms X’s time and effort in having to take G to the COOP sessions that were arranged privately out of school to make up for the lack of earlier sessions;
• a payment to cover Ms X’s lost earnings when she had to take unpaid leave to take G to the sessions, the amount depending on Ms X’s evidence of lost earnings.
69. In my first draft decision I recommended that within three months the Council should review its systems for checking if provision is in place following a new or amended EHC Plan, identify any improvements needed and report back to the Ombudsman. The Council has said the SEN team is now working much more closely in partnership with schools, BHISS, and parent forums to improve communication and oversight of these issues. It agreed to provide details to the Ombudsman of the improvements it has made in its processes for ensuring provision is in place following a new or amended EHC Plan. The Council has now provided that information. The procedures include senior officers attending frequent and regular case review meetings, provision maps being provided to schools when funding is allocated to be linked specifically to the provision in section F of the EHC Plans, and regular senior officer meetings with the heads of SALT and OT services.

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Final decision

70. I have found that while there was some delay in G receiving some of the provision in his EHC Plan, there is not enough evidence to conclude much of this was the result of fault by the Council or to know what impact it may have had. The Council has agreed a suitable remedy in relation to two areas of lack of provision. I am therefore satisfied with the action it has agreed to take and so I have completed my investigation. This is in addition to the improvements the Council has made to ensure better procedures for checking provision under an EHC Plan is in place.

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Parts of the complaint that I did not investigate

71. I did not investigate parts a) and b) of Ms X’s original complaint as set out in paragraph 1 as these are about the content of the EHC Plan and the assessments that informed that content. These are matters that can be dealt with by appeal to the SEND Tribunal and Ms X made an appeal so they are outside the Ombudsman’s remit. Part d) is also outside the Ombudsman’s jurisdiction as it is about the Tribunal process.

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Investigator's decision on behalf of the Ombudsman