Summary: Mrs X complained the Council did not ensure her son, Y, received provision in his Education, Health and Care Plan. She also complained about poor communication and poor complaint handling. She says Y has missed out on provision as a result and she has been caused frustration and distress. The Council was at fault. There were gaps in speech and language therapy provision between October and November 2020 and September and November 2021. There was also poor communication. The Council will pay Mrs X £600 to be used for Y’s educational benefit in recognition of the lost provision, apologise to her for the poor communication and agree how it will communicate with her going forward.

The complaint

1. Mrs X complained the Council:
• Did not ensure her son, Y, received provision set out in their Education, Health and Care Plan between September 2020 and November 2021;
• Did not tell her the outcome of its consultation with their preferred college; despite agreeing to consult with it in July 2021;
• Has communicated with her poorly; and
• Has handled her complaint poorly.
2. She says the Council’s errors mean her son has missed out on provisions in the plan and caused her frustration, ill health and distress. She wants the Council to provide a financial remedy for the lost provision and to agree for her son to attend their preferred college.

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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. If we are satisfied with an organisation’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)
5. 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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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How I considered this complaint

8. I read Mrs X’s complaint.
9. I made enquiries of the Council and considered information it sent me. I also considered information provided by Mrs X.
10. Mrs X and the Council had the opportunity to comment on draft versions of this decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

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. 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 (SEND) Tribunal.

The Council’s complaints procedure

14. Councils must have complaints procedures to support the effective handling of complaints. Derby City Council has a two stage complaints process.
• Stage 1 – An investigation with a response provided within 20 working days for complaints about special educational needs. If a person is unhappy with the response, they can request an escalation to stage 2.
• Stage 2 – Further investigation, with the aim of providing a full and final response within 20 working days.

What happened

15. Mrs X’s son, Y, has special educational needs and an Education, Health and Care Plan (EHC Plan).
16. In September 2020, the Council issued Y’s final amended EHC Plan. The plan included provision for:
• 30-60 minutes of speech and language therapy per week
• 90 minutes of specialist dyslexia support per week
• 90 minutes of specialist dyscalculia support per week
• A weekly session with a psychologist.

It named college A as Y’s educational placement. Mrs X did not agree with the naming of college A in the EHC Plan but did not use her right of appeal to the SEND Tribunal.

17. Y started attending college A.
18. At a meeting in October, college A confirmed it was still working to arrange Y’s timetable.
19. In November 2020, Mrs X instructed a mediation company to contact the Council on her behalf to request mediation. The Council did not respond to the request.
20. The Speech and Language therapist contacted Mrs X to say the Council had agreed to update her following the October meeting confirming when provision could start, but had not done this.
21. Y started receiving Speech and Language Therapy (SALT) at the end of November.
22. In April 2021, the Council held an annual review of Y’s plan. College A and the professionals working with Y submitted reports setting out what provision Y had received since September 2020 and progress made towards his outcomes.
23. In summary, the reports said:
• College A said despite an anxious start, Y had settled in well and had developed strategies to help himself during lessons and to organise himself during the school day.
• Y had attended occupational therapy sessions and made good progress. He no longer needed occupational therapy input.
• Y was having weekly psychology sessions during term time. Although he struggled initially with the move to college A in September 2021, he had met a new peer group which had been helpful. He would benefit from some small group work to further explore social skills.
• The move to college A had been difficult but he had received 1 hour SALT provision per week since the end of November 2020. He had partially achieved his outcomes and these should be extended to the end of the summer term. He would benefit from small group work to work on his social skills.
• Y had received 3 hours per week support for dyslexia and dyscalculia. He was making some progress and had adapted well to online 1:1 learning.
24. The annual review record noted that Y had settled well at college A, even though it had not been an easy transition. Mrs X said she was unhappy Y had received no English tuition at college since September 2021. The Council agreed the plan needed amending and said it would add a new goal for Y to achieve an English qualification in the amended EHC Plan.
25. Mrs X wrote to the Council in June 2021. She said she had still not received a draft amended plan. She also said Y had not received SALT provision since April 2021 due to therapist illness and the Council had not approached a different college, college B, to see if it could meet Y’s needs, as she had requested. The Council did not respond to this email.
26. Mrs X remained unhappy and formally complained to the Council. She complained about several issues including poor communication, dissatisfaction with the support Y was receiving, lack of SALT provision since April 2021 and the Council’s refusal to consult with college B.
27. The Council sent Mrs X a draft amended EHC Plan. The plan named college A as the educational placement.
28. The Council responded to her complaint later in July. It partially upheld her complaint and agreed to:
• Consult with college B to see if it could meet Y’s needs.
• Contact the SALT provider to establish when provision would re-start.
• Provide fortnightly updates to improve communication.
29. Mrs X continued to correspond with the Council during August and September 2021. She expressed dissatisfaction with a lack of occupational therapy input, changes to Y’s timetable and a lack of English tuition. The Council responded to some of her emails.
30. In September 2021, Mrs X told the Council she wanted a change of case worker which the Council agreed to.
31. The Council confirmed it had contacted the SALT provider and was working to get this provision re-started.
32. In November 2021, the Council received a response to its consultation with college B. College B said it could meet Y’s needs, however, the Council’s resource panel did not agree to fund the placement. It said college B was an out of area residential placement, and, as there was no evidence Y needed a residential placement, it would not agree to fund it. It said college A could meet Y’s needs and deliver the outcomes set out in his plan. I have seen no evidence the Council told Mrs X of this decision.
33. The Council issued a final amended EHC plan, which named college A.
34. The Council commissioned an alternative provider for the SALT provision.
35. Mrs X remained unhappy and brought her complaint to us.
36. In its response to my enquiries the Council said:
• It acknowledged there had been a gap in SALT provision during 2021. The Council said it stopped in July 2021 and a different provider was put in place in November 2021. It said it had apologised to Mrs X and Y for the gap in provision.
• The Council’s resource panel had not agreed to fund college B in November 2021.
• Mrs X was in regular contact with multiple Council officers. The Council had allocated her a senior SEND officer in September 2021 to try and manage and improve communication. It had tried to respond and provide frequent updates but due to pressures of workloads it regretted that sometimes these may not be as frequent as Mrs X would like.
• It had received no request from Mrs X requesting to escalate the complaint to stage 2, after it sent her its complaint response in July 2021.
37. Mrs X provided us with documents related to a more recent annual review in 2022 during the course of my investigation.

Analysis

Delivery of provisions in Y’s EHC Plan between September 2020 and November 2021

38. Mrs X says Y did not receive SALT provision between September and November 2020. Before October, college A had not finalised Y’s timetable so it was not Council fault that it could not schedule in the SALT provision. However following the meeting in October, the evidence shows the SALT provider was waiting for the Council to confirm with it when it could start, but the Council did not do this. The Council delayed confirming a start date with the SALT provider during October and November 2020 and so the SALT provision did not start until the end of November. This is fault and meant Y did miss out on some SALT provision during this time.
39. The professional reports submitted for the annual review in April 2021 show Y did receive other provisions in his plan between September 2020 and April 2021.
40. In June 2021, Mrs X told the Council Y had not received his SALT provision since April 2021 due to therapist illness. I have seen no evidence the Council was aware of this issue before June 2021, so cannot criticise it for not acting before this date. In July, the Council said it would contact the SALT service to find out when this would re-start. Given the Council knew there had been no SALT provision since April, it should have worked during July and August to either get the provision re-started or ensure new provision was in place by September. However, the new provider did not start until end November 2021 meaning Y lost a half term’s SALT provision and a further three weekly sessions in November. This is fault. Although the Council has apologised to Mrs X for the gap in provision, this is insufficient to remedy the injustice caused to Y. I have recommended a suitable remedy for this below.
41. Professional reports for the more recent EHC Plan annual review in April 2022 show Y did receive the other provisions in his plan between September and November 2021.
42. Although Mrs X is unhappy Y had not received English tuition, this was not included in Y’s plan as specialist provision. If Mrs X was unhappy with the content of the plan or the named educational placement in September 2020, then she had the right of appeal to the SEND Tribunal.

Consultation with college B

43. In the complaint response provided to Mrs X in July 2021, the Council agreed to consult with college B. College B responded to the consultation request in November 2021, saying it could meet Y’s needs. However, after consideration by its resource panel, the Council said it would not agree to fund it as there was no evidence Y needed an out of area residential placement. There was no fault in how the Council reached this decision, so I cannot question the decision made. However, I have seen no evidence the Council communicated this decision to Mrs X. This is fault which has caused Mrs X frustration and uncertainty.

Communication

44. The evidence shows Mrs X had frequent contact with the Council during the time investigated, but there were times when the Council did not respond to her emails in 2020. Despite an agreement to provide her with fortnightly updates in July 2021, the evidence shows this did not happen. The Council continued to respond to some of her email queries directly during August 2021, some emails were not responded to in September 2021 but then it appears there was a gap between September and November 2021 when there were no updates. On balance, the Council should have been clearer in providing fortnightly updates and ensured these continued as appropriate. I have seen no evidence of regular fortnightly updates from Y’s case officer between July and November 2021, as agreed. This was fault and caused Mrs X frustration and uncertainty.

Complaints handling

45. The Council responded appropriately to Mrs X’s complaint in July 2021 and told her how to escalate her complaint if she remained dissatisfied. Mrs X did not ask the Council to escalate her complaint and so the Council took no further action. The Council was not at fault.

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Agreed action

46. Within one month of the final decision, the Council has agreed to:
• Pay Mrs X £600 to be used for Y’s educational benefit, in recognition of the lost SALT provision between October and November 2020 and September and November 2021.
• Write to Mrs X to apologise for any distress and uncertainty caused by poor communication. It will also review how it will communicate with her going forward and confirm any agreement with her in writing.

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Final decision

47. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused.

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Parts of the complaint that I did not investigate

48. I have not considered Mrs X’s complaint about the content of Y’s EHC Plans or the educational placements named within these. These matters are out of jurisdiction as Mrs X had a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman