Summary: There was fault by the Council in failing to secure provision in an Education, Health and Care plan in 2020 and again in 2021. This led to lost special educational provision, distress and unnecessary time and trouble. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains on her own behalf and on behalf of her child, whom I shall refer to as Y. Ms X complains the Council failed to secure provision in an Education, Health and Care (EHC) Plan in 2020 and again in 2021. Ms X says Y missed out on education and the lack of support affected Y’s mental health.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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.
4. The Council is responsible for 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.
5. 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. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. We cannot investigate a complaint if someone has appealed the same matter to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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)

Back to top

How I considered this complaint

10. I have considered information provided by Ms X and the Council including:
• Y’s EHC plans
• The complaint correspondence
• Medical reports
• Communications between the Council, Ms X and the college Y attended.
11. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (C&FA)
• The Special Educational Needs and Disabilities (SEND) Regulations and Code of Practice.
12. 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.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). 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)
15. The Ombudsman considers councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational 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; and
• investigate complaints or concerns provision is not in place at any time.
16. The Ombudsman has issued a number of Focus Reports about the common failings seen in Special Education Needs complaints, the most recent published in 2019. The aim of publishing these reports is to help drive improvements through councils learning from faults in the cases we see and investigate. In 2019 we highlighted the importance of councils having systems in place to check provision in EHC plans was being provided to the child or young person concerned.

Factual background

17. The Council issued a final EHC plan for Y in June 2020. The special educational provision to be provided to Y included:
• Initial training of college staff
• Input from a speech and language therapist to set up a programme for Y with continued training of staff
• One direct session of speech and language therapy for at least 45 minutes half termly plus a further 45 minutes to then brief staff and parents.
18. Y started college in September 2020. Ms X complained the speech and language training and therapy and training was not in place. The Council logged the complaint but did not respond until after Ms X instructed solicitors to send a letter threatening judicial review. The Council then liaised with the college to ensure provision was put in place.
19. The Council issued an amended final plan in January 2021 which added occupational therapy as special educational provision. An occupational therapist was to design a sensory diet to be incorporated into Y’s school day. The amended plan also specified Y was to have shared (1:2) LSA support in every class with the LSA to email all Y’s notes to her each day.
20. Ms X appealed to the SEND Tribunal to amend the Plan to specify the amount and frequency of qualified therapist input. This appeal is ongoing but does not affect the legal duty of the Council to secure the special educational provision in the existing plan.

Failure to secure provision in the June 2020 EHC plan

21. In response to my enquiries the Council has acknowledged Y did not receive the appropriate level of speech and language therapy between June and October 2020. The Council has proposed a remedy of £500, £300 for the missed sessions and £200 to acknowledge the impact this caused.
22. Consideration of the paperwork shows college staff did undergo the training, but there was a delay arranging this. The therapist recommended in correspondence this happen before or at the very start of term, but it was not arranged until mid-October. The EHC plan did not however specify when the training had to take place. The ongoing therapist input was not arranged until November.
23. There was an obligation on the Council to ensure the provision was in place. It should have done this proactively when the plan was issued. Failure to do so was fault. I am satisfied the proposed remedy of £500 is in line with the Ombudsman’s guidance and appropriate for the injustice caused.

Failure to secure provision in the January 2021 EHC plan

24. There was similar failure to secure the additional occupational therapy and LSA input included in the amended Plan. Ms X says Y had no occupational therapy input and only one speech and language therapy session all year.
25. This time when Ms X complained to the Council instead of investigating and intervening with the college, it advised Ms X to raise this at the next annual review meeting. Ms X again instructed a Solicitor to send the Council a pre-action judicial review letter.
26. In August 2021 the Solicitor’s letter said Y had received only one speech and language therapy session in the academic year 2020 to 2021, no occupational therapy and had no LSA support one day a week. The letter also said the LSA was not emailing the notes daily, but the college was expecting Y to do this herself.
27. The Council’s response to the Solicitor said occupational therapy was now being arranged. The Council said the college was unaware LSA support was required for the full timetable, and this had now been corrected. It said there had been problems with the previous speech and language therapy provider and a new one would be in place from August. The Council said ‘catch-up’ therapy sessions would be arranged.
28. Ms X told me Y left college on mental health grounds in May 2021 a month before her course was due to end, so catch-up provision was not possible and too late.
29. The Council disagreed that notes were not provided. It said the college’s approach was for Y to do this with LSA support, which was a good skill for Y to develop.
30. The Council’s stage two complaint response agreed the provision had not been put in place but said these concerns related to the conduct of the college and Ms X had to raise these via the college complaint’s process.
31. I find it was fault for the Council to:
• Fail to secure the therapy provision and ensure the LSA support was in place. We expect Councils to do due diligence to discharge the legal duty to secure provision under s.42.
• Have advised Ms X to raise this at annual review rather than immediately investigated and intervened, as it did in 2020.
• Have advised Ms X this was purely a college responsibility rather than acknowledge its own the duty to secure provision under s.42.
32. I have not found it was fault for the Council not to intervene to require the college to get the LSA to email notes rather than the LSA supporting Y to email her notes. We would expect Councils to ensure the main provisions in an EHC plan were in place but we would not expect councils to get involved in day to day teaching strategies or implementation of the curriculum.
33. Y missed out on provision between January to July 2021.This was fault.
34. Ms X says the loss of provision adversely impacted Y’s mental health and educational outcomes; she did not meet her targets.
35. I find there is not enough evidence to support a direct link between Y’s deteriorating mental health and the missed provision. The EHC plan indicates Y had a history of mental health difficulties and anxiety about school / college before September 2020.

Failure to have a system to check provision in EHC plans is secured

36. In response to my enquiries the Council told me it has no proactive process for checking provision in an EHC plan is secured. It says this is not possible as it is responsible for 11,000 EHC plans. It considers that by allocating funding to the relevant educational institution this discharges its legal duty, however says it will respond if it is alerted by a setting or parent that provision has not been secured.
37. The Ombudsman’s position is that allocation of funding is not in itself sufficient to discharge the legal duty under s.42. The Courts have said this is a non-delegable duty owed personally by a council to the individual pupil. The Ombudsman expects Councils to do due diligence in checking provision is in place and this important legal duty is properly discharged. This does not have to be an onerous task, for example some councils will ask the setting to complete a checklist or provide confirmation by email that all the provision has been secured when new provision is put in place.
38. I have checked our database of previous decisions and note that we have criticised the Council in other cases for failing to secure provision in an EHC plan in recent years. Failure to have a system to check provision is in place means pupils may miss out on provision for up to a year until the next annual review. It also leads to unnecessary complaints and sometimes to unnecessary legal fees being incurred. Ms X tells me Y’s legal fees were met by legal aid, so while she is not out of pocket this represents unnecessary expense to the public purse as a result of the Council’s fault.

Back to top

Agreed action

Within four weeks of my final decision:

39. The Council will pay Y the £500 it has offered for the lost provision in 2020 and its impact (if it has not already done so).
40. The Council will pay Y £1000 for lost provision from January to July 2021 to include the impact of the loss of that provision.
41. The Council will pay Ms X £250 for her time and trouble bringing the complaints and having to twice instruct solicitors.

Within two months of my final decision

42. I recommend the Council remind officers that the duty to secure provision in an EHC plan rests with the Council and cannot be delegated to settings.
43. The Council’s current position that it does not proactively check provision in an EHC plan is secured or the duty under s.42 discharged. The Council told me it’s Ofsted re-inspection in May 2021 identified that insufficient progress had been made by the local area in all but one of the thirteen areas of weakness identified in the original inspection. The Council says it is working to make immediate and long-term improvements to ensure it is meeting its legal obligations to families. The Department for Education has appointed a commissioner to hold the Council to account in making the required improvements. The Council is preparing an Accelerated Progress Plan (APP) in conjunction with parents and carers. This plan is to demonstrate how the Council will resolve the twelve outstanding areas of significant weakness identified in the Ofsted inspection. The APP has 4 Objectives and each Objectives is also monitored on a cyclical basis by the SEND Improvement Board and the relevant Overview and Scrutiny Committee. The Council has published a SEN Improvement Update outlining what it will be doing to address those areas of significant weakness. The Council’s SEND Improvement Update can be found on its Local Offer website. The Council has advised the Ombudsman the concerns identified in this complaint will be addressed through this process. Therefore the Ombudsman does not need to make additional recommendations for service improvement.

Back to top

Final decision

44. I have completed my investigation. There was fault by the Council in failing to secure provision in an EHC plan in 2020 and 2021. This led to lost special educational provision, distress and unnecessary time and trouble for Ms X in challenging the Council twice to get it to discharge its legal duty to her daughter.

Back to top

Investigator's decision on behalf of the Ombudsman