Summary: The Ombudsman finds fault with the Council for failing to secure provision for Child B. This has meant Child B has missed the provision in his Education, Health and Care Plan which has impacted his wellbeing. The Ombudsman does not find fault with the Council actions in issuing the Education, Health and Care Plan after the tribunal or how it managed other parts of the provision for Child B. The Council has agreed to secure the provision and pay a financial sum in recognition of the lost provision.

The complaint

1. Mr and Mrs A complain the Council delayed implementing provision set out for their son, Child B in his Education, Health and Care Plan (EHCP).
2. Mr and Mrs A complain that because of the delay to implement provision, their son’s transition to college has failed, and his wellbeing and development has been significantly impacted.

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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 a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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(i), as amended)

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How I considered this complaint

6. I considered Mr and Mrs A’s complaint and information provided by them. I also considered information provided by the Council. I considered comments from Mr and Mrs A and the Council on my draft decision.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

SEN code of practice

8. The SEN code of practice (the code) says when an EHC plan is maintained for a child or young person the local authority must secure the special educational provision specified in the plan.

The Special Education Needs and Disability Regulations 2014

9. Section 44 (2)(c) says where the tribunal makes an order that requires a local authority to make and maintain an EHC plan, the local authority shall issue a draft EHCP within 5 weeks of the order being made and send a copy of the finalised EHCP to the child’s parent within 11 weeks of the order being made.
10. The local authority need not comply with the time limit set out in section 44 (2) (c) if it is impractical to do so because:
• exceptional personal circumstances affect the child or their parent;
• the child or their parent is absent from the area of the authority for a continuous period of 2 weeks or more during the period of time; or
• any of the circumstances in regulation 13(3) apply.

What happened

Provision in the EHCP

11. Mr and Mrs A have a child with an EHCP, Child B. Mr and Mrs A challenged the EHCP at the Special Educational Needs (SEN) tribunal on 14 October 2020.
12. The tribunal upheld Mr and Mrs A’s challenge of the EHCP and said the Council must issue the EHCP by 5 November 2020.
13. The Council did not provide a copy of the EHCP until 11 November 2020. It said the reason for the delay was because staff were on leave when the decision was received, and it was therefore not opened until shortly before the 5 November deadline. The Council said the legal requirement to provide a draft of the EHCP is five weeks following the tribunal.
14. In the EHCP, Child B was entitled to set provision for his education. This included one to one tutoring support and access to counselling services. The EHCP also named the educational placement for Child B’s second year of post 16 education.
15. Mr and Mrs A complained to the Council that their son remained without the provision set out in the EHCP. Mr and Mrs A felt the transition to his second year of post 16 education had failed, and his education and wellbeing had been negatively impacted.
16. In its complaint response the Council apologised for not issuing the EHCP by the tribunal date, but said it had five weeks to provide it legally. The Council also accepted it had failed to secure some of the provision in the EHCP and said it was working towards securing it.
17. I have reviewed the legal requirements for Council’s to provide a draft EHCP following a tribunal decision. Councils have five weeks to provide a draft copy of the EHCP following a tribunal.
18. Although the tribunal asked the Council to provide a draft of the EHCP at an earlier date, the Council has complied with the legal requirements by providing one within five weeks of the tribunal. I find no fault with the Council as it complied with its legal requirements.
19. However, I am of the view the Council could have better managed the administration of the tribunal’s decision. The Council should have ensured that documents and decisions from a tribunal are prioritised to be read and acted on in a timely manner.
20. The Council acknowledges that there was a delay in implementing the provision between November 2020 and January 2021. It has agreed to provide extra provision to Child B in recognition of this. I am of the view this is a suitable remedy for the injustice caused by this delay.

One to one bespoke tuition

21. Between January 2021 and April 2021 Child B had one to one tutoring sessions as set out in his EHCP. In April 2021 Mr and Mrs A contacted the Council and said they did not feel this tutor was able to provide the support set out in Child B’s EHCP for his additional needs. Mr and Mrs A also advised that Child B was no longer able to engage with the tutoring due to a decline in his mental health and lack of counselling.
22. Mr and Mrs A asked that a new tutor be found and for Child B to receive the counselling provision in the EHCP. Mr and Mrs A said that Child B had previously been supported for dyslexia as well as his additional needs.
23. I have reviewed the Council’s communication with the tutoring agency, and the provision set out in the EHCP. Child B’s EHCP currently states the Council must secure the provision of “Bespoke weekly 1:1 targeted English Language tuition to enable Child B to improve his literacy skills and gain a GCSE in this subject, from a qualified English teacher”. I have reviewed the communication between the Council and the tutoring agency who provided tutoring services to Child B between January 2021 and April 2021.
24. It is my current view the tutor was suitably qualified, and the Council met its duty to secure the provision. I do not intend to find fault with the Council for not providing a tutor with dyslexia support. This is because it was not part of the provision set out in the EHCP.
25. The Council remained in contact with the tutoring agency throughout the sessions and were informed of Child B’s progress.
26. It is also my current view that as the Council had secured the tutoring provision, it is not at fault for Child B not engaging with the provision. The provision met the criteria set in the EHCP and was available for Child B to engage with.
27. The Council has already accepted that it will need to provide added provision to make up for the missed provision before January 2021.

Access to counselling services

28. The final copy of the EHCP was issued in January 2021. It said that Child B should have “regular access to 1:1 counselling support”.
29. I have reviewed documents and communication by the Council. The Council at first tried to source counselling services in December 2020, however this was not successful.
30. There appears to be a significant delay in the Council continuing to try to source counselling services for Child B, as enquiries were still being made in July 2021. The Council says this is because it is unable to find a counsellor who is suitable to meet Child B’s needs.
31. The Council was able to arrange an initial counselling session for Child B in June 2021.
32. The initial session was delayed because the Council could not process the payment to the company providing the service. The Council asked Mr and Mrs A to pay for the service and the Council would reimburse them. Mr and Mrs A could not make this payment and the session did not take place.
33. The Council wrote to Mr and Mrs A and asked how the session had gone. Mr and Mrs A advised it had not taken place as it had not been paid for. The Council followed up with the company and resolved the payment issues. Child B then had his initial counselling assessment. It was advised that he needed further one to one sessions.
34. It is likely the Council asked Mr and Mrs A to pay for the counselling as to not delay the provision further, with a view of reimbursing them. However, Mr and Mrs A were clear they could not agree this arrangement. It is the Council’s responsibility to secure the provision in the EHCP, and in this case I am not satisfied the Council did so in a timely manner. The Council was aware the provision had not been secured and that Mr and Mrs could not pay the amount with a view to being reimbursed, however did not initially act on this information. I am also of the view that asking parents or guardians to pay for provision with the Council to reimburse costs is not an appropriate method of securing provision. It is the Council’s duty to secure provision and not the duty of parents.
35. It is my view the Council has failed to secure this provision. The Council accepts that it has not yet secured this provision and has said that it has not been able to find a suitable counsellor who can meet Child B’s needs. However, the Council has a duty to secure provision in the EHCP. Therefore, I find fault with the Council for not securing the provision set out in Child B’s EHCP.
36. I acknowledge the Council has approached several agencies with a view to providing this provision and has discussed with Mr and Mrs A about which services are appropriate. However, I am also of the view that the delay in securing this provision has been furthered by the rejection of counsellors by Mr and Mrs A. By rejecting the services offered by the Council, Child B has had further delay in accessing the provision that is needed. I appreciate that Mr and Mrs A want what they feel are the most suitable services for their son, however, the Council has tried several agencies to provide this support.

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Agreed action

37. Within 4 weeks of my decision, the Council has agreed to

• Write to Mr and Mrs A and Child B and apologise for the delay in implementing tuition and for the impact this has had.
• Pay Child B the sum of £2000 in recognition of delay and missed provision.
• Provide additional tutoring provision in recognition of the missed provision set out in the draft decision.
• Secure the counselling provision set out in Child B’s EHCP.

38. Within 12 weeks of my decision, the Council should

• Remind staff of the importance of opening tribunal decisions and implementing the actions set out in decisions.

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Final decision

39. I have now completed my investigation. I find fault with the Council for not securing other provision set out in the EHCP. I do not find fault with the Council for how it managed other parts of Child B’s provision or its actions in issuing the EHCP after the tribunal.

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Investigator's decision on behalf of the Ombudsman