Summary: There was delay in putting in place provision in an Education, Health and Care Plan following a Tribunal decision. This led to a child missing out on education and social care support. The Council will apologise and make a financial payment.

The complaint

1. Mr X complains on his own behalf and on behalf of his son, whom I shall refer to as Y, that the Council:
• Failed to secure special educational provision in Y’s Education, Health and Care (EHC) plan in breach of section 42 of the Children and Families Act
• Failed to follow a recommendation from the Special Educational Needs and Disability Tribunal (SEND) that Y should receive social care support.
• Offered a remedy which was not sufficient for the level of fault.
2. Mr X says that as a result:
• Y missed out on education and specialist therapies
• The family missed out on support within the home
• He incurred unnecessary legal fees
• He has been put to unnecessary time and trouble getting the Council to provide services to Y.

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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. 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)
5. 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 Council is responsible for making sure that arrangements specified in section F (special educational provision) and H (social care) of 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.
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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. We aim to remedy personal injustice when our investigations reveal there has been fault that, where possible, puts the affected person back in the situation they would have been in if the fault had not happened. There must be a clear link between any fault we find and the personal injustice to the complainant.
9. Sometimes we will recommend a financial payment, this might be a symbolic payment which serves as an acknowledgement of the distress or difficulties a complainant has been through. Our remedies are not intended to be punitive. We do not order compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of a service would have been. We consider any mitigating or aggravating actions by the complainant which might have affected the injustice.
10. Where there is service failure, such as a failure to put provision in place, we may not ask the Council to provide a remedy if we are satisfied the Council has done what it reasonably could to secure the provision and its failure to do so was outside its control.
11. 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

12. I have considered information provided by Mr X and the Council including:
• Tribunal judgment
• Y’s EHC plan
• Complaint correspondence
• Correspondence between the Council, Y’s nursery and providers.
13. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014
• The SEND Regulations and Code of Practice.
• ‘SEND Tribunal – extended appeals’.
14. I have considered guidance issued by the Ombudsman including:
• Guidance on Remedies
• Our Focus Reports on special educational needs and EHC plans.
15. 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.
16. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan.
18. The Tribunal has powers under the Children and Families Act to make certain decisions in relation to appeals. The Tribunal can dismiss the appeal or order the Council to carry out an assessment, make or maintain an EHC plan or maintain a plan with amendments.
19. Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC Plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
20. For extended appeals the Tribunal is also able to make non-binding recommendations concerning:
• The health and social care needs to be specified in EHC plans
• The health and social care provision related to the child’s SEN
• The social care provision that is made under Section 2 of the Chronically sick and Disabled Persons Act 1970 (CSPDA)
21. Although any recommendations made by the Tribunal about health or social care needs or provision are non-binding and there is no requirement for the Council to follow them, the Council is generally expected to do so. Reasons for not taking recommendations forward must be explained in writing within five weeks of the Tribunal recommendation. (Department for Education Guidance: SEND Tribunal – extended appeals)
22. The Ombudsman’s position is that we expect councils to follow Tribunal recommendations unless they can provide a good reason not to.
23. 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).
24. 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. The Ombudsman does consider that 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 that provision is not in place at any time.

Impact of COVID-19 pandemic

25. On 5 January 2021 the government announced schools in England would close until at least mid-February, in response to the COVID-19 pandemic. Schools remained open for vulnerable children, including those with EHC plans, and the children of critical workers. Schools remained closed until 8 March.
26. The government issued guidance to schools on 7 January. This said:

“Where a pupil has provision specified within their EHC plan, it remains the duty of the local authority and any health bodies to secure or arrange the delivery of this in the setting that the plan names. However, there may be times when it becomes very difficult to do so, for example, if they are self-isolating. In this situation, decisions on how provision can be delivered should be informed by relevant considerations including, for example, the types of services that the pupil can access remotely, for example, online teaching and remote sessions with different types of therapists. These decisions should be considered on a case by case basis, avoiding a one size fits all approach.”

27. The guidance said schools should follow advice about minimising the risk of transmission, including considering how to reduce contacts and maximise distancing between those in school wherever possible. Suggested measures included keeping children in consistent groups, avoiding contact between groups and staff maintaining distance from pupils and other staff as much as possible.
28. In a letter to children and their families published on 14 January the government said where it becomes more difficult to deliver provision in an EHC plan:

“education settings, local authorities and health partners (where applicable) should discuss with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of and circumstances specific to the child or young person, avoiding a one size fits all approach.”

Factual Background

29. The Council issued a final EHC plan for Y in November 2020, one month after a SEND Tribunal decision ordering the Council to amend the Plan.
30. The November 2020 Plan included the following provision relevant to the complaint:
• Speech and language therapy
• School staff working with Y to have an understanding of speech, language and communication needs. This could be through ELKAN training for a designated member of the team or in-house by a speech and language therapist - 3 Day ELKAN course or similar
• Sensory integration therapy (SIT) one hour per week to be reviewed by occupational therapist each term
• Sensory diet
• Support for fine motor skills
• Interoception training programme
• Provision of a personal assistant to provide support to child in the home two hours per day.
31. The social care provision of two hours support per day was a non-binding recommendation by the Tribunal.
32. The Council make enquiries to commission occupational therapy (OT) on 10 December 2020.
33. On 13 December 2020 Mr X complained provision in the EHC plan was not yet in place including speech therapy, occupational therapy, ELKAN training and social care.
34. In January 2021 the Council told Mr X speech therapy should be in place as this was agreed with the therapist prior to the Tribunal hearing in October and the school/nursery should be implementing all the provision. The Council was still trying to commission sensory OT which was proving problematic due to COVID-19 as providers did not have capacity (the country was in the third ‘lockdown’ at that time). Mr X was advised to contact his social worker about social care provision. Mr X was unhappy with this response and asked for his complaint to be considered at stage two.
35. On 7 January 2021 Mr X told the Council the OT that had provided a report for Tribunal was able to provide the therapy at its clinic. Mr X said Mrs X would need to travel to the clinic with Y and take his siblings so Y’s LSA would need to travel with them.
36. The Council was agreeable to commissioning this provider but the nursery refused for the LSA to accompany Y.
37. The Council asked the OT Provider if it could provide support to Mrs X when she visited the clinic. The Council chased the Provider a few times before it responded in March 2021. The Provider said it could provide a room at additional cost for Mrs X and the other children to use but no support staff. It offered a trial session to see if Y would be able to do the session with the therapist on his own while Mrs X waited in a separate room.
38. Mr and Mrs X did not take up this offer due to no additional adult being provided to support siblings.
39. In March 2021 Mr X again chased up the ELKAN training. The Council said a member of staff within the setting was ELKAN trained and supporting Y’s LSA who was doing the training online in her own time.
40. Between January and March 2021, COVID-19 restrictions on travel and contact were in place.
41. In late March Mr X instructed solicitors to send a pre-action protocol letter threatening to judicially review the Council if it did not secure the provision in Y’s EHC plan.
42. The Council then provided its stage two complaint response. The Council considered school staff had the appropriate training required by the EHC plan in place. The OT sessions were not being provided as no Provider was currently willing to attend the setting due to COVID-19 restrictions and Mr X had not taken up the offer of sessions at a clinic. The Council had commissioned the NHS to provide speech therapy but acknowledged due to COVID-19 some sessions had been missed. The Council said catch up sessions for SLT would be arranged.
43. The Council acknowledged it had not issued a notification within five weeks of the Tribunal decision whether it accepted the recommendations on social care. It acknowledged this was fault. The Council said it had also carried out a new social care assessment to consider if other support was required. The Council acknowledged Mr X had received mixed messages about whether they would receive this support.
44. The Council noted that while provider availability and COVID-19 had played a factor in missed sensory OT sessions, the service had not fully ensured the delivery of special educational provision. The Council offered to remedy this by way of:
• An apology
• A payment of £400 for catch-up / additional sensory OT sessions
• A payment of £100 for the poor communication around social care provision.
• A payment of £100 for Mr X’s time and trouble bringing the complaint.
45. In April 2021 the Council responded to Mr X’s solicitors that:
• It did not read the EHC plan as requiring the LSA to be specifically ELKAN trained
• It did not read the plan as the LSA, rather than other staff members, having to provide all his support and supervision
• The LSA was trained in Makaton.
• While the Government had not altered the Council’s responsibilities to secure provision during the third lockdown (January to March 2021) in practice OT provision was unavailable or restricted placing the Council in an impossible situation.
• The Council had offered sessions at a clinic but the family had declined these. This was the only offer available. There was no OT able or willing to visit Y in his setting due to COVID-19.
• The Council had recently contacted another provider that was re-starting face to face work in settings.
• The sensory diet and OT programmes in school could not be written until Y was seen by an OT.
46. The setting provided further information in April that appropriately trained staff were supporting Y, the home school communication book was being completed more regularly at parents request and that Y was settled and enjoying the setting.
47. Mr X told me OT sessions started in May 2021 and had an immediate positive impact on Y’s behaviour.
48. The Council told me an agreement about catch-up OT sessions was agreed with Mr X. Mr X told me the Council’s offer was derisory (£400) and did not reflect seven months of missed therapy or the distress, time and trouble or expense caused. Mr X says his legal fees were £1,764.
49. The Council told me it has already introduced a new tracking system where the Council emails the education setting approximately one month after a final amended EHC plan is issued to check all provision is in place.
50. Social care documents show it was aware of the Tribunal decision in October and decided to carry out a new assessment, which started in December 2020. Social care had previously completed assessments of Y in 2019 and June 2020 which found Y did not meet the criteria for statutory short breaks support. The outcome of the December 2020 assessment was:
• Y should access holiday activities with funding to be applied for and provision to be in place by Easter 2021
• The Tribunal recommendations to be explored within child in need planning, this will include the recommendation of a personal budget. A timescale of 4 March was set to complete this.
• A carers assessment was to be completed by 10 March.
51. The Council told me that Y was opened to child in need on 12 February 2021. Direct payments were set up on 19 April for Y to receive ten hours personal assistant support per week and direct payments are continuing. Mr X told me payments did not start until June 2021.

Analysis

Failure to provide special educational provision in Section F of the EHC plan

Fault

52. In 2014 we issued a Focus Report Special Educational Needs: Preparing for the Future which said where the Council had clear knowledge of what provision is needed and a likely start date then delay in putting provision in place is not acceptable. Where different provision is ordered by a Tribunal than a council expected, we usually expect straightforward provision to be in place within four weeks and complex provision to be available within no more than half a term.
53. The Council issued the amended final Plan in November 2020 and Y became entitled to the special educational provision within it at that time.
54. I find that:
• Speech therapy was not in place until January 2021.
• Sensory OT was offered from March 2021 but the family did not take this up. The family found another provider willing to travel a round trip of three hours 30 minutes which the Council agreed to fund in May 2021.
• Y could not receive a sensory diet or other OT programmes in school until the OT had seen him.
• A member of school staff was suitably trained but this was not the LSA working with Y, who did not attend a three-day course but was expected to complete online training in their own time over several weeks.
55. I find there was a delay in the Council sourcing OT provision. The Council had the Tribunal order in October but did not contact providers until December. This was fault. But for this delay Y could have seen an OT before the ‘third lockdown’ in January 2021.
56. Once the country went back into lockdown and schools were shut to many pupils, I acknowledge the Council was not able to find a provider to visit Y at his setting. It is clear from the Council’s correspondence this issue affected many children locally. While Mr X found an OT willing to travel to see Y in late April this does not alter my view that the Council had made reasonable efforts to identify providers. I would not necessarily expect a Council to widen the search radius to one hour 45 minutes away and the position in late April, once lockdown was lifting, was different. Between January and March Government guidance was to minimise contacts.
57. In January 2021, Mr X had identified that one provider would see Y at their centre. The Council commissioned this provider in January, so there was no delay. However, Mr X said they required additional arrangements for Mrs X to take Y and his siblings to the centre. I find the Council did try to meet Mr X’s request for additional arrangements, but the provider took several weeks to come back to the Council. The Council did chase the matter up.
58. The Council offered the family a solution in March 2021 to attend the clinic and it would fund a separate room for Mrs X and the other children to wait in. I consider this was a reasonable offer. Mr X has said in response to my draft decision that the clinic was too far away and Y could not travel such a distance without causing him distress. I find it was Mr X who suggested that Y travel to this provider and I find it was reasonable for the Council to commission a provider the family had requested and been content to travel to in January.
59. The Council / provider offered the family a ‘trial’ to see whether Y would access his session without Mrs X being present. We expect complainants to mitigate their loss and I would have expected the family to have attempted a trial rather than delay Y receiving his provision. If the trial had been unsuccessful the Council could then have looked at alternatives.
60. Councils are not obligated to provide exactly what a parent requests but must be satisfied the provision commissioned matches what is in the EHC plan. The Council was satisfied the OT commissioned was appropriate and indeed was the provision parents had requested in January. The Council told Mr X’s Solicitors that this was the only available offer as no alternative was available at that time due to COVID-19.
61. The Council had commissioned speech and language therapy before it issued the EHC plan in November. Once the Council became aware therapy had not started it intervened. My understanding is this was quickly resolved with catch-up sessions arranged. I consider the Council has provided a suitable remedy.
62. The EHC Plan did require the LSA working with Y to have at least three days of specialist speech and language training. I am not persuaded knowledge of Makaton signing was sufficient to meet the Tribunal’s wording. Y’s EHC Plan focuses on the use of, and modelling of, speech and use of visual supports. ELKAN or similar training would have looked at wider strategies than signing. Mr X also told me Y does not use Makaton.
63. I do consider the Council could have challenged the setting further about why the LSA could not be made available to attend OT appointments and why the LSA could not be released to do the training in work time. The Council could perhaps have negotiated additional support or funding which would have allowed the LSA to attend OT sessions or complete the training faster. However, it may have been the setting would not have agreed to releasing the LSA in any event. The Ombudsman has no jurisdiction to consider the actions of education settings.

Injustice

64. The LSA would have benefitted from the input from the speech and language therapist and the other member of staff who was ELKAN trained so it is not the case that Y did not receive any intervention for his language and communication needs. The evidence from the setting was that Y was responding to the strategies in place.
65. I find there was a four-month delay (November to March) in providing sensory OT sessions. I am not persuaded the Council is responsible for the delay between March and May. An offer was available that Mr X had previously indicated he was willing to travel to.
66. I find that if the Council had contacted OT providers immediately on receipt of the Tribunal decision then, on the balance of probabilities, an OT would have seen Y at least once before the third lockdown and would have been able to provide at least some interim guidance on sensory diets and strategies to the settings.
67. The Council offered ‘catch-up’ OT sessions or £400. I am not persuaded this makes up for the loss of education between November and March, as for example a sensory diet was intended to assist Y be more regulated and available for learning throughout the day and OT was not just focussed on the teaching of motor skills. Our remedies guidance provides for a symbolic payment of £200 to £600 per month for lost education. I consider a payment of £200 per month, for four months is appropriate for the elements of Y’s education he lost out on which can be linked to fault by the Council.
68. Mr X instructed solicitors and incurred fees in late March. By this time speech and language therapy was in place and an OT provider available. The only outstanding issue was that the LSA had not completed ELKAN training. The evidence provided by the setting is that interventions were in place and Y was responding to them. When recommending a remedy we consider what is proportionate, appropriate and reasonable in all the circumstances. I am not persuaded it is proportionate to ask the Council to refund Mr X’s legal costs. It was Mr and Mrs X’s choice not to take up the offer of a trial session with the OT. This is not a case where the Council was not trying to secure the provision. The Council was facing specific difficulties due to COVID-19 which restricted what it could offer. Government guidance anticipated that flexibility about how provision could be delivered would be required.

Failure to implement Tribunal recommendation on Social Care

69. The Council had to decide whether to follow the Tribunal recommendation within five weeks.
70. The Council had already completed an assessment in June 2020. The Tribunal’s role is to stand in the Council’s shoes and use its own expertise to decide what, if any, social care provision is required. It may then recommend to a Council that it substitute the Tribunal’s view for its own. The Council simply had to decide whether to accept the recommendation made. There was no requirement for the Council to complete a reassessment so timeframes for completing social care assessments do not apply.
71. The Council did not provide a written decision that it would not follow the recommendation, instead it issued a final EHC plan with the provision included which indicates the recommendation was accepted. This caused confusion as if the recommendation was accepted and included in the plan, there was no need for a reassessment.
72. I would have expected any care planning or setting up of direct payments to have been actioned promptly once a recommendation was accepted. I find the provision should have been put in place by the end of December 2021.
73. I find there was delay by social care in implementing the Tribunal recommendation until Spring 2021. This was fault.

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Agreed action

Within four weeks of my final decision

74. The Council will apologise to Mr X for the further fault identified in this investigation.
75. The Council will pay Y the sum of £800 for the loss of special educational provision up to March 2021 and the impact this had on his education.
76. The Council will calculate the social care direct payments that would have been due between 1 January 2021 and the date when payments started. An equivalent sum should be paid to Mr X to acknowledge the delay in social care provision
77. The Council will pay Mr X £100 for his time and trouble bringing the complaint.
78. I am satisfied the Council has now developed a process to check EHC provision is secured.

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Final decision

79. I have completed my investigation. There was delay in putting in place provision in an Education, Health and Care Plan. I consider the agreed actions set out above represent a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman