Summary: Mrs Y complained the Council failed to provide her son with support set out in his Education, Health and Care Plan, failed to provide information about options at his new placement, and about its failures in communicating with her. We have found fault by the Council in failing to provide the support in the Plan and the way it communicated with Mrs Y, causing injustice. The Council has agreed to remedy this by apologising, making payments to acknowledge the impact on Z of the loss of education and to reflect Mrs Y’s upset and time and trouble.

The complaint

1. The complainant, who I am calling Mrs Y, complains about the way the Council dealt with her son, who I am calling Z’s, Education, Health and Care Plan (EHC Plan) and communicated with her about this. She says:

• The Council failed to arrange the occupational therapy (OT), speech and language therapy (SALT) and cognitive behaviour therapy (CBT) as required by the SEND Tribunal in August 2019 and specified in Z’s EHC Plan. The provision should have been in place in September 2020 when Z started at the new placement named in his EHC Plan. It was not put in place until 2021.
• Z’s progress has been affected by the lack of OT and SALT support. He has only been able to attend school part-time and might have been able to attend full time by now if the specified support had been in place.
• The Council failed to provide them with full information about the curriculum and GCSE’s Z would be able to take, before accepting the placement at the new school. They were told in 2021, Z would only be able to take five GCSE subjects. They understood, when they accepted the placement, he could continue the six GCSE subjects he had chosen at his previous school and achieve nine GCSE grades in total.
• Their caseworker failed to respond to emails, the Council failed to comply with Mrs Y’s requests for unencrypted emails, which she was unable to open and view, and delayed its response to her complaint. These communication failures caused her unnecessary frustration and inconvenience.

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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. 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

4. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint
5. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
6. 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

What should have happened

Education, Health and Care Plan (EHC Plan)

7. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
8. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
9. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.

What happened

10. I have set out a summary of the key events below. It is not meant to show everything that happened.
11. Z has special educational needs (SEN). He has a diagnosis of Autistic Spectrum Disorder (ASD), severe anxiety and other conditions. He has an EHC Plan.

School year 2018/2019

12. Mrs Y appealed to SEND about the provision in Z’s October 2018 plan.
13. Z stopped attending school in March 2019. The SEND process was still ongoing during this period.
14. SEND issued its decision in August 2019. It ordered changes to Z’s plan including additional provision of SALT and OT support through his school placement.
15. The Council issued Z’s amended EHC Plan in September 2019 including the additional OT and SALT provision which was to start when Z returned to school.

School year 2019/2020

16. The Council arranged to provide Z with education other than at school until a suitable new placement was found. In May 2020 Z was offered a place for September 2020 at a new specialist unit. This placement was named in his EHC Plan.

School year 2020/2021

17. Z started at his new school in September 2020. The additional OT and SALT provision was not in place.
18. In September Mrs Y raised her concern with the Council that Z’s OT provision was not in place. She contacted it again for an update in November. In December Mrs Y contacted the Council about Z’s SALT provision. This was due to start after the first half term. She also raised concerns Z had not been able to continue with two of his GSCE subjects.
19. The records show the Council started looking for an OT provider in November 2020 and a SALT provider in December 2020.
20. The provision had not been arranged by January 2021. Mrs Y complained to the Council. A SEND mediation meeting was held on 19 January with Mrs Y, the Council and the school. The Council agreed to chase up the OT and SALT referrals and the school agreed to engage with Z about his GSCE subjects.
21. The provision was not in place by March 2021 and Mrs Y complained to us.
22. Z’s OT provision support started on 7 June 2021. His SALT provision started shortly after the planning meeting on 22 September 2021.

Council’s response

23. The Council has confirmed it did not start looking for providers until 20 November 2020. It then had difficulty sourcing suitable provision. There were a limited number of practitioners available and periods when practitioners were not working directly with children in school because of Covid.
24. It accepts efforts to secure the provision should have started much sooner. It has offered to fund additional OT and SALT sessions for Z if deemed appropriate.
25. It does not accept it misled Mrs Y about the GCSE provision the school could offer. The option to complete additional GCSEs was available within the school setting. The school told it Z would have to join mainstream classes if he wanted to do more than five GCSE subjects, which he did not want to do. The school engaged with Z about his GCSE subjects as agreed in the mediation plan.
26. The Council accepted there had been delays in responding to Mrs Y’s complaints, and communication failures. It apologised to Mrs Y for these in its complaint responses. It said it had reminded the team about timescales for responding to emails and calls and updated guidance about handovers on a change of caseworker.
27. It also apologised to Mrs Y in its complaint response for errors in sending encrypted emails, when she had told the Council her preference was not to receive them in this format, and for any inconvenience this caused. It said when alerted to errors in sending encrypted emails it had made sure an unencrypted version was re-sent immediately. And it had reminded teams working with Mrs Y about her preference.
28. It commissioned an independent review of its SEND services in Summer 2021. The review is published on its website and the Council has drafted an Action Plan to implement the recommendations, which it says addresses issues of poor communication.

My findings – was there fault by the Council causing injustice?

Service failure

29. Our published Guidance on Jurisdiction explains that ‘service failure’ or the ‘failure to provide a service’ is a straightforward, objective and factual test of what happened in any particular set of circumstances, independent of any judgement about the body’s intentions.
30. We may conclude that service failure has occurred, causing a significant injustice to the complainant, in the absence of any specific flaws in the Council’s policy or process, and despite the best endeavours of the Council. 
31. This might be the case where, for example, an otherwise sound system is undermined by the absence of key staff or the inability to recruit to key roles, or where external market factors (such as the availability of temporary accommodation for the homeless) prevent a statutory duty being delivered. In these circumstances we can find fault and recommend a remedy for the injustice that arises. We will identify any external factors that led to the failure of the service.

Provision of SEN support

32. The Council knew, in May 2020, the OT and SALT provision in Z’s EHC Plan needed to be in place when he started school in September 2020. It did not begin trying to source this provision until November 2020. The Council has accepted it should have started the process sooner. I consider its failure to look for suitable providers in good time before Z started school was fault.
33. The evidence I have seen shows, once it started looking, the Council contacted many providers. The evidence confirms its difficulties finding someone suitable, due to limited availability and Covid, which meant it took many months to put the provision in place.
34. But I consider part of the delay was due to the fault in not starting to source the provision in good time. And although the Council may have made every reasonable effort to put the provision in place once it started looking, it failed to fulfil its statutory duty to duty to arrange Z’s special educational provision, set out in the EHC Plan, from September 2020 (the OT provision) and after the first half term (SALT provision). I acknowledge the difficulties the Council faced but its failure to provide this service amounts to fault.
35. Because of this, Z did not receive the OT and SALT support he needed when he started at his new school.
36. I note the Council’s Action Plan includes a review of the process of securing specialist provision.
37. I also note the Council’s offer to fund additional OT and SALT sessions. But I do not consider this goes far enough towards remedying the injustice caused by the failure to secure the provision.
38. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
39. I consider the payment from September 2020 to October 2021 should be towards the lower end of the scale. Z was attending a specialist placement and had access to the other specialist support his new placement was able to provide.

Communication with Mrs Y

40. The Council has accepted there were delays and failures in its communications with Mrs Y, including its complaint responses, case officers’ communications and not using Mrs Y’s preferred email format. I consider this was fault by the Council, which caused Mrs Y unnecessary time and trouble.
41. I note the Council has already apologised to Mrs Y for the communication failures and delays. It has taken action to address these and told us it is looking at the way it communicates with families further to the 2021 SEND review.
42. I have not seen records showing what information the Council provided to Mrs Y about GCSE options the new school could offer Z before she accepted the placement in May 2020. I do not consider I have been provided with evidence of fault by the Council in this respect. But in any event, I am not persuaded any misunderstanding about the number of GCSE subjects Z could take caused him any injustice. GCSE options are only a part of the services and support this specialist placement has been able to offer Z since he started there in September 2020.

Independent Send Review September 2021

43. The Independent SEND Review is published on the Council’s website. This reviewed focussed on the processes, communication protocols and family-facing elements of the Council’s SEND services.
44. The Council has also published its Action Plan addressing the review team’s recommendations, together with an open letter to parents and carers. It said it wanted to show it could put things right, had already started to make improvements to the way it did things and would continue to do so as quickly as it could.
45. I note the action the Council is taking now to improve its SEND services, including communication with families. We hope these improvements will address the issues leading to the faults identified in this complaint. In view of this, I do not consider it appropriate to make any recommendations for service improvements in this decision.

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Agreed action

46. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Ms Y for its failure to provide Z with the OT and SALT support in his EHC Plan from September 2020 to October 2021.
• apologise to Z for its failure to provide him with the OT and SALT support in his EHC Plan from September 2020 to October 2021.
• pay Mrs Y £300 for each school month of inadequate SEN provision for Z from September 2020 to October 2021 (a period of 42 school weeks), making a total of £2,900, to be used for the benefit of Z’s education.
• pay Mrs Y £300 to reflect her time and trouble in trying to get the Council to fulfil its statutory responsibilities and upset caused by its delays in providing the specified support to Z and its communication failures. This figure is a symbolic amount based on the Ombudsman’s published guidance.

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Final decision

47. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman