Summary: The Council was at fault for delaying in putting in place Speech and Language Therapy for Ms X’s son. This caused him injustice as he missed out on provision he should have received. We have made a recommendation to remedy the injustice caused. We have not investigated Ms X’s complaint that the Council failed to provide Y with suitable education. This is because Ms X exercised her appeal rights to the SEND Tribunal.

The complaint

1. Ms X complains the Council:
1. Did not provide her son with suitable education when he was out of school from September 2019 until January 2021.
2. Did not provide her son the with Speech and Language Therapy (SALT) listed in his Education, Health and Care Plan.
2. Ms X said her son has fallen behind his peers and his development has been impacted as a result.

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What I have investigated

3. 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.
4. I have not investigated matters relating to the SEND Tribunal or matters inextricably linked to the matters under appeal. This includes complaint a). I have set out later in this statement the reasons for not investigating this complaint.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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

9. As part of this investigation, I considered the information provide by Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
10. 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

Law and guidance

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
13. 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)
14. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
15. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

16. There has been extensive correspondence between Ms X, and the Council since September 2018. In this section of the statement, I summarise key events but I do not refer to every single contact and communication.
17. Ms X’s son, Y, has complex needs. He has a diagnosis of Autism and developmental delay with particular difficulties with speech and language, social interaction skills, sensory processing issues, hypermobility, and oppositional behaviour.
18. In September 2018 the Council issued Y’s EHC Plan. This named School A, a mainstream school and specified Y should receive 40 minutes per fortnight of SALT.
19. In December 2018 Ms X appealed to the SEND Tribunal. She appealed the sections of the plan outlining Y’s special educational needs (SEN), the SEN provision and the school placement. Ms X argued Y needed an Applied Behavioural Analysis (ABA) programme and Occupational Therapy (OT).
20. In September 2019 Y stopped attending School A as Ms X considered the school could not support Y’s needs. Ms X told the school and the Council she was removing Y and would be home educating him. Ms X decided School A could not provide the necessary support for Y and she had lost trust in School A to provide the support Y needed. At this time the SALT Y received stopped as School A were providing this.
21. In March 2020 the SEND Tribunal issued its decision. The SEND Tribunal decided Y should receive an ABA programme and OT. Prior to the SEND Tribunal issuing its decision Ms X and the Council agreed School B would be a suitable placement for Y, however Y continued to be educated at home.
22. In July 2020, the Council appealed the SEND Tribunal’s decision to the Upper Tribunal. In September 2020 the Upper Tribunal allowed the Council’s appeal on the grounds that the SEND Tribunal failed to consider relevant matters/or explain its decision when deciding whether Y had made progress and when ordering ABA provision. The Upper Tribunal suspended the March 2020 SEND Tribunal decision.
23. School B initially refused to take Y until the ongoing appeal was concluded, as it was not clear what provision Y would need. In January 2021 however, Y enrolled at school B and the school sent work for him to complete at home due to the Covid 19 lockdown restrictions.
24. On March 2021 the Council agreed to fund Y’s SALT provision and backdate this to January 2021. The Council and School B were in discussion about putting in place SALT provision for Y, however the funding was not agreed.
25. In September 2021 Y’s SALT provision started after the funding issues were agreed. The Council put in weekly sessions of SALT, instead of fortnightly to try to make up for some of the time Y was without SALT.
26. On 4 October 2021 the Tribunal issued its decision. The Tribunal decided Y did not need ABA provision as no professionals involved with Y had recommended this.

Ms X’s complaint

27. On 12 May 2021 Ms X complained to the Council. Ms X raised issues about the education provided to Y and the lack of SALT. Ms X also raised issues about the Council’s conduct during the Tribunal process.
28. On 25 May 2021 the Council provided its final response to Ms X. The Council said:
• It did not act inappropriately when meeting Ms X before the hearing to discuss the working document.
• It was satisfied Ms X was providing suitable education at home to Y. This was based on the written and photographic evidence Ms X provided.
• School A decided not to incorporate ABA therapy into Y’s programme, not the Council.
• It accepted it has not put in place SALT and apologised. The Council said it had issues with funding and will pursue this vigorously.
• It would not investigate issues about the SEND Tribunal through the complaints process as these should be raised with the SEND Tribunal.
29. Ms X remained dissatisfied and complained to the Ombudsman. Ms X said Y had not received SALT since he started at School B. In addition, the Council had not put in place any education for him while he was at home.

Analysis

Complaint a) The Council did not provide Y with suitable education when he was out of school from September 2019 until January 2021

30. I have not investigated this part of Ms X’s complaint. This is because Ms X exercised her rights to appeal to the SEND Tribunal and disagreed with the school placement named on Y’s EHC Plan. During this time a school placement was available to Y at School A, but Ms X decided to take Y out of school. Her appeal rights arose in September 2018 when the Council issued Y’s final EHC Plan. The appeal was concluded in October 2021. Any period of lost education to Y during this period is out of jurisdiction for the Ombudsman to consider.

Complaint b) The Council did not provide Y with SALT listed in his EHC Plan

31. I can investigate this part of Ms X’s complaint. Although Ms X appealed to the SEND Tribunal and this included aspects of the SEN provision listed in section F of Y’s EHC Plan, the appeal did not consider whether Y should receive SALT provision. From the evidence provided the SEND Tribunal considered whether Y should receive an ABA programme.
32. When the Council issued Y’s EHC Plan in September 2018 he was receiving SALT provision at School A and continued to do so until Ms X removed him from School A. At this stage the SALT provision was available to Y at School A. However, when Y started his placement at School B the Council should have arranged SALT provision for him as this was listed in his 2018 EHC Plan.
33. Y suffers with development delays in speech and language therefore SALT was important for his development. The delays by the Council in putting in place SALT may well have impacted Y’s social skills and educational progress.
34. The Council has recognised it did not provide Y with SALT provision from January 2021 until September 2021 and apologised. The Council also put in place extra SALT sessions from September 2021 to December 2021. While this is welcomed I do not consider it has gone far enough to remedy the injustice caused or make up for all the SALT sessions Y missed.

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Agreed action

35. Within one month of my final decision, the Council agreed to pay Ms X £500 to recognise the delays in putting in place SALT after Y started School in January 2021 and the distress this caused to Y and Ms X.
36. In coming to this figure, I have considered that SALT was important for Y’s development and the length of time it took the Council to put this in place. I have also considered the Council has put in place extra sessions for Y once it started SALT provision in September 2021.

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Final decision

37. I have completed my investigation and found the Council was at fault for delaying in putting in place SALT provision for Y. This caused Y injustice. The Council has agreed to the above action to remedy the injustice caused.

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Parts of the complaint that I did not investigate

38. I have not investigated Ms X’s complaint that the Council did not provide suitable education for Y after she removed him from School A. I have outlined above why. I have also not investigated Ms X concerns about the AB provision as this was appealed to the SEND Tribunal.
39. Ms X has also made a new complaint to the Council in January 2022 that the Council has not put in place the provision listed in Y’s new EHC Plan which was issued in October 2021 following the Upper Tribunal’s decision. I have not investigated this complaint as it has not been through the Council’s complaints process yet.

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Investigator's decision on behalf of the Ombudsman