Summary: Ms X complained the Council delayed securing the special educational provision in her son’s Education, Health and Care Plan. She said this had a negative impact on her son’s learning and social and emotional development. There was no fault by the Council.

The complaint

1. Ms X complained about the following matters:
1. The Council’s actions in relation to her son’s Education, Health and Care Plan (EHC Plan) between March 2020 and October 2020 during which time she appealed to the SEND Tribunal. Ms X also complained how the Council investigated her complaint about these matters.
2. The Council’s decision to complete an additional psychology assessment with her son in August 2020, which caused him distress.
3. Delay in securing the provision finalised in his plan by the SEND Tribunal in October 2020. She said there was a two-month delay before the Council fully secured the special educational provision, which had a negative impact on her son’s learning and social and emotional development.
2. Ms X would like the Council to review its policies and procedures to ensure this does not happen to any other child with special educational needs and to their family.

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What I have investigated

3. I have investigated section C of Ms X’s complaint. I have explained why I have not investigated sections A and B at the end of this decision statement.

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The Ombudsman’s role and powers

4. 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)
5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or

(Local Government Act 1974, section 24A(6))

6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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)

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How I considered this complaint

8. I considered the information provided by Ms X and the Council.
9. I spoke with Ms X about her complaint.
10. Ms X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
12. After an EHC Plan is finalised, councils have a duty to ensure the special educational provision set out in the Plan is delivered. This duty is set out in the Children and Families Act 2014 and is non-delegable.
13. Councils should ensure provision is in place within a reasonable timescale. We would usually expect straightforward provision to be in place within four weeks and complex provision to be available within no more than half a term.
14. If a person disagrees with the content of an EHC Plan or an amended EHC Plan, they have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).

What happened

15. Ms X’s child, Y, has special educational needs and an EHC Plan. In March 2020, the Council issued a final amended EHC Plan. Ms X was unhappy with the content of the plan and appealed to the SEND Tribunal. The Tribunal heard the case and issued a final EHC Plan towards the end of October 2020. Therapy provision within the Plan was to be delivered by Ms X’s preferred provider, provider A.
16. In November 2020, Ms X contacted the Council. She expressed concern that although the SEND Tribunal had finalised the plan, the Council was making changes to the provision. She said she had contacted the Council multiple times regarding this, but she had still not received an answer to why changes were being made.
17. The Council explained to her that it was not making changes to the provision but due to its COVID-19 risk assessments, provider A could not deliver Y’s provision in school. Instead, it would fund transport for Y to attend its clinic. It apologised for not responding to her queries sooner to clarify this.
18. During November 2020, the Council worked with provider A to get most of the provision in place.
19. Provider A told the Council that Ms X had agreed to a reduction in length and frequency of one of the sessions, as the therapist felt the amount set out in the Plan was too much for Y. Ms X later told the Council that she had not agreed to this and wanted the provision to be delivered as listed in the Plan. When the Council told provider A this, they agreed to resume the full sessions in line with Ms X’s wishes but due to staffing rotas and a period of self-isolation for Y due to COVID restrictions, this did not begin until early December 2020. The Council agreed to fund additional sessions for Y for the time missed.
20. Ms X was unhappy that by the end of November 2020, some of the provision was still not in place. She wrote to the Council, set out her outstanding concerns. The Council responded and:
• agreed to reimburse travel costs and her expenses for taking Y to provider A’s clinic for his therapy sessions;
• explained why therapy sessions could not currently be delivered in school;
• set out what the Council was doing to get the remaining provision in place.

It also invited her to a meeting to discuss any outstanding issues.

21. Ms X remained unhappy and submitted a formal complaint towards the end of November 2020. The Council responded to Ms X’s complaint at the beginning of December 2020. It explained to Ms X what it was doing to secure the provision. It also referred to a scheduled upcoming meeting between Ms X, the Council, the school and provider A and said this would give Ms X the opportunity to discuss and address her concerns.
22. In early December 2020, Ms X attended the meeting with the Council. They discussed Ms X’s concerns and the Council agreed to update her within four days about the outstanding provision.
23. The Council wrote to Ms X. It confirmed Y’s provision was now in place apart from a specialist therapy programme. It said provider A had told it the specialist programme would be delivered by a specialist Speech and Language Therapist (SALT) and would start at the beginning of the new school term in January 2021. The Council says the delay in implementing the specialist programme was due to the SALT availability and also because provider A’s professional opinion was that it was not clinically appropriate to begin this programme midway through a term. The specialist programme began at the beginning of January 2021.
24. In mid-December 2020, Ms X contacted the Council and said although she had attended the meeting to discuss and address her concerns, she still remained dissatisfied with the Council’s actions in securing the provision. She asked the Council if it had concluded its investigation. The Council confirmed it had concluded its investigation and said its response earlier in December 2020 and the meeting which took place was its final response.
25. From mid-January 2021, the Council held regular meetings with Ms X and provider A to ensure Y was receiving the provision and for it to respond to any further concerns from Ms X.
26. Ms X remained unhappy and complained to us.

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Findings

27. The SEND Tribunal issued Y’s final EHC Plan towards the end of October 2020. The Council had most of the provision in place by early December 2020, except for the specialist programme delivered by a SALT, which commenced at the beginning of January 2021.
28. These timescales are broadly in line with what we would expect. Although there was some delay in securing the provision, the factors which caused the delay were beyond the Council’s control.
29. There was a miscommunication about whether Ms X had agreed to reduce the frequency and length of one of the sessions. The evidence shows provider A told the Council she had agreed to this, when she said she had not. Once the Council had clarified Ms X’s wishes, it asked provider A to reinstate the full provision as set out in Y’s Plan. There was some delay doing this due to staffing issues with provider A and Y having to self-isolate due to COVID-19, but this delay was not the Council’s fault.
30. Due to COVID-19, provider A chose not to deliver sessions in Y’s school. Instead, provider A was delivering sessions from its clinic. The Council agreed to fund Y’s transport to the clinic so he could still receive therapy. This was an appropriate action in the circumstances. It was provider A’s decision to not provide therapy in schools at this time due to the COVID-19 pandemic. The Council was not at fault.
31. The specialist therapy programme delivered by a SALT did not start until January 2021. Although this was a two-month delay, this was due to the therapist’s availability and provider A's professional opinion that starting the programme midway through a term was not appropriate. The Council was not at fault for following the professional advice and agreeing for the programme to start in January 2021.
32. The Council did make reasonable efforts to secure the provision set out in Y’s EHC Plan and it appropriately supported Ms X during this period. It responded to Ms X’s concerns and it involved Ms X in the process of securing the provision. In addition, it worked with all parties involved with Y’s EHC Plan to ensure everyone understood what was required to secure the provision. There were some delays, but these were not caused by the Council’s actions. The Council was not at fault.

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Final decision

33. I have now completed my investigation. The Council was not at fault.

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Parts of the complaint that I did not investigate

34. I did not investigate section A of Ms X’s complaint. This is because Ms X appealed to the SEND Tribunal. We have no jurisdiction to investigate matters where someone has used their right of appeal.
35. I also did not investigate Ms X’s complaint about how the Council investigated her complaint in relation to the matters in section A. This is because we cannot investigate a complaint about any action by a council, which is itself out of our jurisdiction.
36. I did not investigate section B of Ms X’s complaint. This is because any injustice caused was not significant enough to justify an investigation.

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Investigator's decision on behalf of the Ombudsman