Summary: Ms X complains the Council failed to ensure her son received the provision specified in his Education, Health, and Care Plan causing distress to both her and her son. We found there was fault by the Council as it failed to ensure all the provision was in place. This caused injustice to Ms X and Y. The Council has accepted our recommendation to make a payment to Ms X, so we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complained the Council failed to ensure her son, Y received the provision specified in his Education Health and Care Plan (EHCP) issued in July 2021. In particular Ms X says the Council has failed to provide education psychology, speech and language therapy (SALT), sensory occupational therapy (OT) and mental health intervention. Ms X says it has caused distress to both her and Y.

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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 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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

6. I considered the complaint and documents provided by Ms X and discussed the complaint with her. I asked the Council to comment on the complaint and provide information.
7. Ms X and the organisation 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

Legal background

8. 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.
9. 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 EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.

10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. 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)
11. 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) 

What happened in this case

12. Y has Autistic Spectrum Disorder (ASD) and prone to anxiety. In 2020 the Council issued Y with an EHCP. This named school B, Y’s current mainstream primary school as the school he should attend. Ms X wanted Y to attend a specialist school and appealed to the SEND tribunal in December 2020.
13. The Tribunal hearing took place in July 2021.The SALT assessment on Y’s speech, language and communication skills did not consider Y needed a specific SALT provision. But recommended the school consider accessing support from suitable agencies if there were concerns about his social communication skills.
14. The Tribunal issued a decision on 9 August 2021. It allowed in part changes to section B, the child’s special educational needs and section F, the special educational provision required by the child. But it did not accept Y had ‘severe’ attention and ‘significant’ communication difficulties and school B remained as the appropriate setting to meet his needs. This was except for the specialist counselling included in the plan by agreement to be funded by the Council. This included provision from education psychology, SALT, sensory occupational therapy (OT) and mental health intervention.
15. During the hearing professionals identified Y presented differently at school with his behaviour more dysregulated at home. Ms X asked for two nights a month respite care for Y. The Tribunal recommended the Council carry out a Child and Family assessment to decide the social care support that Y and Ms X needed.
16. The Council updated and issued an amended final EHCP to School B and Ms X on 9 September 2021. The provision included the use of social scripts, 1 to 1 support, social communications sessions, and a distraction free space to work in when needed. It also included movement breaks, sessions by a trained and experienced psychologist at least 45 minutes every two weeks and OT sessions.
17. In September 2021 the Council made two referrals for psychology services for the counselling provision required in the EHCP. And a referral to Early Help in its Children’s services about the social care assessment for respite. The Early Help service identifies the need for help for children and families as soon as problems start to emerge, or when there is a strong likelihood that problems will emerge in the future. Early Help said it was not part of its remit to complete a social care assessment and such an assessment differed to the Early Help assessment. It advised the SEND team to make the request to social care if Y needed a social care assessment.
18. In December 2021 the Council made a referral to Early Help to access the psychology service needed as the previous referrals had been unsuccessful. A case worker advised Mrs X of the referral, but Ms X did not wish to pursue it. The Council asked SALT to deliver the SALT aspect of the EHCP.

Ms X’s stage 1 complaint to the Council

19. Ms X complained to the Council in November 2021 about the EHCP and lack of provision at school B. Ms X referred to an incident at school with Y, lack of help with his emotional needs and no psychologist appointed. Ms X wanted Y to move to any other suitable alternative.
20. The Council responded to Ms X’s complaint at stage 1 of its complaint procedure. It confirmed an officer contacted school B about her concerns and met with the headteacher and the school’s special educational needs coordinator. The officer and school discussed the arrangements in place to deliver Y’s provision and the school confirmed it would continue to meet Y’s needs. This included using social scripts, the specific 1 to 1 adult support, access to distraction free areas as needed, visual timetables and prompts, mind maps, correct height tables and movement breaks. The Council found the school staff properly trained and experienced around ASD.
21. The school explored whether it could develop and implement further support. School B was willing to take this further and named some options for Y. The Council was reassured and confident that, as shown at the Tribunal hearing, school B had a good understanding of Y and his needs and putting appropriate support and provision in place.
22. The Council confirmed it was responsible for commissioning and putting some provision for Y in place. This included provision from education psychology, SALT, sensory OT, and mental health interventions. The Council confirmed the sensory OT in place from November 2021 and the others due to be in place from January 2022. The Council found no evidence school B was not delivering what was required of it and so would take no further action.

Ms X’s stage 2 complaint

23. Ms X remained unhappy with the Council’s response and set out 10 areas of concern she wanted addressing through stage 2 of the complaint procedure. In January 2022 the Council held a meeting with school B, Ms X, and her advocate to mediate Ms X’s concerns around the school and provision being delivered to Y.
24. The Council wrote to Ms X after the meeting. It acknowledged Ms X remained dissatisfied with the outcome of the Tribunal in July 2020 but had advised her to appeal this as the best way forward. The Council said it would continue to ensure Y’s EHCP was being delivered. The Council addressed Ms X’s areas of concerns including the use of social scripts, sensory circuits, therapy programmes for Y to attend and the use of visual timetables for him. The Council confirmed the actions being taken by the school.

Events from March 2022

25. The Council held a virtual meeting with Ms X in March 2022 and noted Ms X was happy with the way matters were going at school B. Ms X discussed counselling support for Y, but she did not want a referral to Healthy Minds. Ms X suggested an alternative and agreed to send the Council details.
26. The Council contacted school B in May 2022 about Y’s provision. The school confirmed Y was having 1 to 4 support at break and lunchtimes to help his social understanding and interactions. He received sensory OT every Monday afternoon supported by his TA. Y received 1 to 1 support from the TA for an entire school day and received 2 to 1 staffing support when in crisis. The school were providing social scripts and sent home activities to Ms X. The school provided confirmation showing how it was meeting the provision in Y’s EHCP. But Ms X had declined the mental health interventions.
27. The Council started the annual review of Y’s EHCP in July 2022.

The Council’s response to Ms X’s complaint

28. The Council confirms that following Ms X’s complaint about the provision being made in November 2021 an officer contacted the school to discuss the arrangements in place. From this the Council was satisfied the school had a good understanding of Y’s needs and would continue to meet his needs. The Council considered the school staff appropriately trained and experienced around ASD and it agreed to look at how extra support could be given to Y and Ms X. The Council was satisfied the school was putting the appropriate support and provision in place.
29. The Council held meetings with Ms X in January and March 2022 to go through her areas of concerns. The Council says Ms X raised no further concerns about the school delivering the EHCP provision after March 2022. Ms X says she had pursued her concerns with other organisations and government departments.

My assessment

30. 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.
31. In response to my enquiries on the complaint the Council provided evidence to show how the school was meeting the requirements of Y’s EHCP. It has sent evidence showing its response to Ms X’s concerns about the provision. This was through meetings with the school and Ms X. The Council was satisfied the school understood Y’s needs with staff appropriately trained and experienced. The Council confirmed the school was putting appropriate support and provision in place.
32. I am satisfied there is evidence to show the Council carried out due diligence to check the provision in place for Y. There is no evidence of fault in the way the Council responded to Ms X’s complaints about provision being made by the school. And no fault in the way it has satisfied itself the appropriate provision was being made.

Sensory OT provision

33. The Council confirms it commissioned and put sensory OT in place in November 2021. This takes place each week and a TA accompanies Y for the session. The OT provided online training for Ms X and discussed sensory activities to carry out at home. The Council says there is no evidence the provision is not being made.

My assessment

34. The law requires the Council to amend the EHCP and put the provision in place within five weeks after the Tribunal order. So, in this case the Council should ensure the provision it commissioned was in place by 13 September 2021.
35. The Council put the sensory OT provision in place by November 2021. This is fault by the Council as it delayed putting the provision in place within the required timescales. But I do not consider it has caused such a significant injustice to Ms X and Y to recommend a remedy as the provision has been ongoing since November 2021 and Ms X says Y has made good progress.

Psychological provision

36. The Council confirms the psychology input in the EHCP was to be indirect through therapeutic intervention. It would be focused on reducing Y’s anxiety and to educate and train him to better understand and manage anxiety. The EHCP specified it should be at least 45 minutes every two weeks and needed reviewing after 12 months.
37. The Council made referrals to two psychology services to commission counselling provision in September 2021. But neither service accepted the work considering the amount too small to take on. In December 2021 a CAMHS team discussed Y. It reported to Ms X while Y had some autism traits, his symptoms were not reflective of an underlying anxiety disorder that would benefit from a mental health intervention.
38. The Council made a referral to Early Help to access psychology provision for Y in December 2021. But Ms X did not wish to pursue it. The Council and Ms X discussed counselling support in March 2022. The Council offered to refer Y to Healthy Minds, but Ms X refused. Ms X suggested an alternative provision and agreed to send the Council details. But she has not done so. The Council is now proposing to remove the psychology provision from the EHCP following input from CAMHS in the Annual Review process.

My assessment

39. The Council made the psychology referrals in September 2021 but were unsuccessful in commissioning the provision. So, it referred Y to Early Help for psychology provision in December 2021. This is fault by the Council as it did not ensure the psychology provision was in place within the required timescales. But I do not consider it has caused an injustice to Ms X and Y. This is because while the Council was late pursuing the provision, Ms X has chosen not to pursue the psychology options put forward any further.
40. The Council wishes to remove the psychology provision from the EHCP at the Annual Review. If Ms X does not agree she will have to right to appeal the decision to the SEND Tribunal. This will be once the Annual Review process is completed and the Council issues an amended EHCP.

Social care assessment

41. The Council confirms it made a referral to Early Help for a social care assessment for respite in December 2021. Early Help said Y did not meet the threshold for the service and if a referral was needed it should be made to social care. Early Help said the family may have unmet needs that do not specifically need a social care assessment. So, it recommended the Council followed the Early Help pathway. And a professional working with the family could complete an Early Help assessment to understand the family’s unmet needs. But Ms X did not agree to the Early Help assessment being completed by a professional.
42. The Council says a SEND caseworker was given an action to complete a social care referral in December 2021. But it has no evidence the action was carried out.
43. The Council made a referral to social care for an assessment following our enquiries about the complaint in May 2022. Social care responded in June 2022 Y did not meet the criteria for an assessment and recommended an Early Help assessment. The Council advised Ms X as it needed her consent to carry out the assessment. The Council reports Ms X is undecided whether she wishes the assessment to go ahead.

My assessment

44. The Council carried out the referral for an assessment but made it to Early Help who referred it back to SEND advising it should be made to social care. The Council took no further action until May 2022. This is fault by the Council as it did not follow up the Tribunal’s recommendation within the required timescales. In addition, the Council did not make a social care assessment specified in the Order as it made a referral to Early Help.
45. Once the referral was made to social care Y was found not to meet the criteria and should be referred for an Early Help assessment. The Council’s delay in carrying out the social care assessment is fault. However, as Ms X has not consented to an Early Help assessment, I cannot say what the outcome will be and whether there has been any missed support or respite.
46. But the Council’s delays in referring Y for a social care assessment has caused an injustice to Ms X and Y. This is because of uncertainty as to whether they require any social care support from the Council or respite. In addition, Ms X has been put to time and trouble in pursuing her concerns about the social care assessment. I recommended the Council apologises to Ms X for the failure to carry out the Tribunal’s recommendation for a social care assessment within the required timescales. And makes a payment of £250 to Ms X as a remedy for the delay, uncertainty and her time and trouble in pursuing the matter.

Speech and language therapy provision

47. The Council sent SALT a copy of the tribunal decision in August 2021 as it asked for the outcome of the tribunal and if any action was required. The Council contacted SALT in December 2021 as it received no response. The Council asked SALT to deliver the SALT aspect of the EHCP. This was mainly to provide input into staff training at the school, devising termly language and communication targets with the school and parents. And to ensure it was integrated throughout the curriculum.
48. The Council followed up the SALT input in May 2022 in response to our enquiries on the complaint. The Council reported SALT cannot deliver provision as it was not found clinically indicated as necessary when they assessed Y in 2021. However, it asked SALT to liaise with the school about the provision. It has requested another SALT assessment before Y’s EHCP review in July 2022 to ensure it records the correct provision needed.
49. In July 2022 SALT advised it could not carry out an assessment before the review as Ms X did not give parental consent. SALT had offered a one-off assessment, but Ms X requested it take place over three days and the sessions be videoed. SALT refused Ms X’s request but advised the offer of a one-off session remained available. At Y’s review in July 2022 Ms X agreed to consent to the SALT assessment which is being arranged.

My assessment

50. The documents show the Council told SALT of the outcome of the Tribunal and the input needed but SALT did not respond. There is no evidence the Council pursued this further until May 2022. This is fault by the Council as it has not ensured the provision within the required timescales. The SALT provision is regarded as indirect input and questioned whether it is clinically necessary. So, the Council has arranged a further assessment to establish this and whether any on- going provision is needed. Until the assessment has been carried out, I cannot say whether Y has suffered an injustice through any missed provision. But Ms X and Y have been caused an injustice through uncertainty over the SALT provision and Ms X put to time and trouble in pursuing her concerns.
51. I recommended the Council apologises to Ms X for the missed provision and pays her £250 for the uncertainty caused by its failure to ensure Y’s SALT provision has been put in place. And her time and trouble in pursuing the matter.

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Agreed action

52. The Council has agreed to apologise to Ms X for the faults I found and pay her a total of £500 for the distress it will have caused her and Y for the delays, uncertainty and her time and trouble in pursuing the matter. It will do so within one month of the final decision.
53. The Council has agreed to review and put in place procedures for ensuring it carries out SEND tribunal orders, and the provisions of EHCP’s are put in place within 5 weeks of an Order. The Council will complete this action within two months of the final decision and tell us of the action taken.

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Final decision

54. I have found there was fault that caused injustice to Ms X and Y.

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Investigator's decision on behalf of the Ombudsman