Summary: There was fault by the Council in failing to secure the special educational provision in an EHC plan. This led a child to lose out on education and placed additional strain on the family. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains on behalf of her daughter, whom I shall refer to as Y, that the Council failed to secure special educational provision for Y as set out in her education, health and care (EHC) plan.
2. Ms X says that Y has lost out on education and her communication skills suffered due to a lack of speech therapy. Ms X also says she has been put to unnecessary time and trouble dealing with the complaint and has been unable to work as Y was not attending a school.
3. Ms X says schools the Council consulted could not meet Y’s needs. The Council then named a pupil referral unit in Section I of Y’s EHC plan which Ms X regarded as ‘unsuitable’ and so Y did not attend. Ms X says she has been unable to work as she has had to educate Y at home.
4. The Council has accepted there was delay issuing an amended EHC plan and that there were periods when therapy was not available. The Council has apologised and offered ‘catch-up’ provision as a remedy. Ms X complains no additional therapy has been provided and no remedy has been offered for missed provision.

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What I have investigated

5. I have investigated the above complaints except where there has been a right of appeal to a Tribunal about the same matter. I explain this further below.

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The Ombudsman’s role and powers

6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• 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 even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), as amended. R v the Commissioner for Local Administration ex parte PH, 1999)
8. 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.
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 considered information provided by Ms X and the Council including Y’s EHC plan, tribunal documents and the special educational needs file for Y.
11. I have considered relevant law and guidance including:
• The Children and Families Act 2014 and associated Regulations and Code of Practice.
• The Education Act 1996.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Relevant law and guidance

14. 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.

15. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place (Section 42 Children and Families Act 2014). 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. 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)
16. The Ombudsman expects Councils to have systems in place to check that provision in an EHC plan has been secured and is being provided to a child or young person. (Not going to plan? Education, Health and Care Plans two years on’)
17. Councils must arrange suitable full-time education (or as much education as the child’s health condition will allow) for children of compulsory school age who because of illness, exclusion, or otherwise may not for any period receive suitable education unless such arrangements are made for them (s.19 Education Act 1996, ‘Ensuring a good education for children who cannot attend school because of health needs’).
18. We cannot investigate a complaint if someone has appealed to a tribunal. Where there is a right of appeal to the Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are inextricably linked. (R (on the application of ER) v the Commissioner for Local Administration, 2014) This means where a council issues an EHC Plan and names a placement the parents consider unsuitable, and which the child does not attend, the Ombudsman cannot investigate any failure to provide education during the period of the appeal. The decision (naming an unsuitable school or no school) and the consequence (failing to provide education) are inextricably linked.
19. Further, the lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)

What happened

20. Y was attending School A. Her annual review meeting was held in February 2019. Following review meetings councils must decide whether to amend the EHC plan, cease the plan or keep the plan the same. The Council decided to amend the plan but delayed in making this decision by several months. Ms X complained about this at the time and the Council upheld her complaint and apologised.
21. At Easter 2019 School A’s speech and language therapist left and was not replaced. Y did not receive the speech therapy set out in Section F of her EHC plan (40 minutes direct therapy per week and input into school interventions) from Easter 2019 onwards.
22. In August 2019 the Council noted Ms X had raised concerns about provision in the EHC plan not being implemented and said it would monitor this through the annual review process.
23. Ms X was dissatisfied with this response.
24. An emergency review meeting was held in late September 2019 due to concerns the placement was breaking down and parental dissatisfaction with the suitability of School A for Y. It was noted the school was recruiting a speech therapist. School A gave the Council six weeks notice to find an alternative placement for Y.
25. Y stopped attending School A in November and her EHC plan was updated to name School B but Y could not start School B until February 2020.
26. The Council offered to provide tutoring but said there was no capacity in November / December. Records show Ms X offered to home educate Y for six weeks, until Christmas only. The Council has provided evidence showing the tutoring service contacted Ms X in January to offer six hours per week, but Ms X declined to introduce tutoring at that point as felt this would be too much for Y who had by then started half day transition visits to School B.
27. Ms X says Y had a fixed term exclusion within a week of starting School B which indicated to her that Y’s needs were not capable of being met at School B.
28. Y did not receive speech therapy at School B. An early help assessment by School B in April 2020 identified Y had not received speech therapy since Easter 2019. Ms X says the Council would not put speech therapy in place without a new assessment. Ms X obtained a private speech therapy assessment of Y. The Council says it was Ms X’s choice not to await local NHS assessment.
29. A further review meeting was held in May 2020 at which School B said it also could not meet Y’s needs. It said Y had a different profile than it was designated for, and the funding provided by the Council was too low to implement the provision set out in Section F.
30. Following the review the Council issued a notice to amend the EHC plan on 8 June 2020. By August 2020 the Council had not yet identified a new placement and Ms X complained about delay.
31. The Council then issued a final plan naming a type of placement (a pupil referral unit) in late August and then another version of the final Plan in early September 2020 naming School C (a pupil referral unit).
32. Ms X says that School C was named initially as a ‘vehicle’ for delivering education otherwise than at school via three providers including home tuition and speech therapy via outreach support from a special school.
33. The Council acknowledged in its reply to Ms X’s complaint it had again been late issuing an amended plan but said this was due to delays in the consultation process. The Council has provided me with evidence it was consulting schools from June to September 2020. The chronology the Council has provided indicates Y remained on roll at School B until 31 August 2020 and was on roll at School C from 21 September 2020.
34. Ms X complained the Council’s response did not address that Y had been without speech therapy since Easter 2019. The Council acknowledged it had failed to respond to this issue at stage one and upheld the speech therapy had not been provided and apologised. It said it would contact therapy services who would then contact Ms X about speech therapy and also occupational therapy (OT) Y should be receiving. Ms X remained dissatisfied and complained to the Ombudsman.
35. Ms X appealed the final EHC plans issued in August and September 2020. Ms X told me that during the appeal the Council’s position about School C changed and it proposed that Y now attend on site where a bespoke package would be provided. The Council says if Y attended on site she could access the special educational provision in the EHC plan. School C is not however able to provide speech therapy which has been provided via outreach provision.
36. After Ms X brought the complaint to the Ombudsman, we asked the Council to provide a final complaint response. The Council did so and said that Y was now getting 30 to 60 minutes speech therapy twice a week via outreach. The EHC plan stated Y should receive 40 minutes per week. The Council said Y was therefore receiving additional catch-up provision.
37. The Council also upheld Y had not received OT since ‘attending’ School C.
38. In May 2021, the outreach speech therapy stopped.
39. The SEN Tribunal heard the case in April 2021, at this point the Council conceded School C could not meet need and proposed a new school, School D. The Tribunal was adjourned for Ms X and Y to visit School D.
40. I asked the Council how it ensures its duty to secure provision in an EHC plan is discharged. It told me it does this via consulting schools in advance of placement and at annual review but also parents can raise complaints with the school or Council. In response to my draft decision the Council says it now has a plan in place to remind schools of the duty to deliver the provision in Section F and to alert the Council if they are unable to do so.

Analysis

Scope of the investigation

41. I have investigated the loss of education (including therapy) from Easter 2019 until August 2020 only. I cannot investigate the period from when the Council issued a final EHC plan naming a type of placement and then School C. Ms X had a right of appeal against these decisions which she has used. This is the same situation as in R v the Commissioner for Local Administration ex parte PH, 1999 when the Court decided the Ombudsman could not investigate loss of education during the period of the appeal. Loss of education is intrinsically linked to the suitability of School C, which Ms X has asked the SEND Tribunal to determine. The Ombudsman cannot also therefore consider it.

Loss of education and therapy Easter 2019 to August 2020.

42. An EHC plan is a legal document and there is a duty on councils to secure the special educational provision in Section F of a Plan. It is for councils to decide how they will check that provision is secured, but the courts have been clear councils are personally responsible for ensuring the duty is discharged and cannot delegate this duty to other bodies such as schools.
43. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan all the time. The Ombudsman does consider that as a minimum to discharge the legal duty councils must have systems in place to:
• Check the Section F provision is in place when a new or substantially different EHC plan is issued or there is a change in placement.
• Check the provision at least annually via the review process.
• Investigate complaints or concerns that provision in not in place at any time.
44. To discharge the legal duty to ‘secure’ the provision does therefore require some pro-active check by the Council that new provision is in place at the start and that this is documented on the Council’s file. This does not need to be an onerous process and could be done by email, telephone or completion of a checklist, although some councils will also hold ‘settling in reviews’ after a short period to check the Plan is working as intended.
45. We would not consider it fault if a Council ensured provision was in place, but the provision then stopped, and the Council had no knowledge of this.
46. I do not know what date the Council became aware the speech therapist had left School A, but it must have known by August 2019 when it advised Ms X it would address this at the next annual review.
47. It was not acceptable for the Council to say it would monitor speech therapy through annual reviews. Once the Council knew special educational provision was not being provided it had a duty to secure this and the Ombudsman would expect a council to take action to do so without delay not wait for the next annual review. The Council failed to do so and so Y did not receive her provision for the rest of her time at School A.
48. The Council also failed to check that School B had put Y’s special educational provision in place. This was fault. Councils must satisfy themselves they have discharged their duty under s.42 and Section F provision is fully in place when a child starts a new placement.
49. I find the Council was at fault in failing to secure speech therapy for Y during the academic year 2019 to 2020. I cannot look at the school year 2020 to 2021 as Ms X has used an alternative remedy to the SEND Tribunal.
50. The Council has provided evidence it did offer home tuition when there was a gap between Y leaving School A and starting School B. The Council says Mrs X chose to home educate. Ms X says she effectively had no alternative to do so in November / December 2019. Tutoring capacity did become available in January 2020 but was then declined by Ms X. I find that there is not enough evidence to know whether Ms X would have accepted tutoring had it been offered immediately, given her views that transition visits and a new school were enough change for Y to deal with. I acknowledge she may have chosen to home educate Y in any event. However, lack of capacity in its own service is not as a reason for a council not to provide alternative education under s.19 Education Act. In this situation the Council should have sought alternatives. I acknowledge that it is uncertain whether alternative options could have been put in place before January in any event.

Injustice

51. Ms X complains she has been unable to work as Y has been unable to attend school. While Ms X did have to support Y at home between November 2019 and February 2020, Ms X declined support offered by the Council’s tutors and preferred to continue to home educate alongside transition visits. I cannot say this injustice arose due to fault by the Council as it is likely Ms X would have been unable to work during this period in any event.
52. I cannot consider Ms X’s inability to work since September 2020. This is a consequence of the Council’s decision to name School C and Ms X’s choice that Y did not attend on site. Ms X appealed this decision to the SEND Tribunal.
53. Y did miss out on speech therapy and the Council was aware of this from Summer 2019 and should have intervened. Y missed out on one year of therapy as a result of this fault. The Council has apologised for this and says it arranged additional therapy above what the EHC plan provides for. Ms X says that the additional therapy was needed as Y’s skills had regressed, however the legal entitlement in the EHC plan remains at 40 minutes per week. While it was appropriate for the Council to consider if it could remedy the injustice through catch-up provision, it does seem likely, as Y’s therapy needs increased, that she is behind where she would have been if there had been no gap in provision. The Council has also been unable to provide the remedy for the period anticipated as the outreach service was unable to continue after May 2021 due to staffing issues. I therefore find the Council has been unable to complete the remedy it offered to settle the complaint.

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Agreed action

Within four weeks of my final decision

54. The Council will apologise to Ms X and Y for the additional faults I have identified in this investigation and Ms X’s time and trouble pursuing the complaint.
55. The Council will pay Y £1000 to acknowledge the impact of the loss of therapy between Summer 2019 and Summer 2020. This takes into account that some catch up provision was provided in 2020/21 but has now stopped. The payment should be made into an account in Y’s name but under the control of her parents.

Within eight weeks of my final decision

56. I recommend the Council ensure it has robust processes in place to discharge its s.42 duty to secure provision in EHC plans. The Ombudsman would not consider a plan to put the onus solely on schools to alert the Council as sufficient to discharge the s.42 duty when a new Plan is issued. The Ombudsman would expect councils to do their own due diligence to ensure that the legal entitlements in a new or substantially amended EHC plan are met.

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Final decision

57. I have completed my investigation. There was fault by the Council in failing to secure the special educational provision in an EHC plan. This caused injustice. I am satisfied completion of the recommended actions above are a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman