Summary: Mr X complains the Council failed to ensure provision in his daughter Y’s Education, Health and Care (EHC) Plan was delivered. The Council was at fault as it failed to ensure Y received the speech and language therapy set out in her Plan. The Council has agreed to make a symbolic payment to Mr X of £300 to acknowledge the loss of provision to Y in line with the Plan.

The complaint

1. Mr X complains the Council failed to ensure provision in his daughter Y’s Education, Health and Care (EHC) Plan was delivered since the plan was finalised in July 2020. Mr X says this has impacted upon her education, social development and mental health.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. 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)
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 have considered the information provided by Mr X and discussed the complaint with him on the telephone.
9. I have considered the Council’s response to my enquiries and the relevant law and guidance.
10. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

11. Children and young people with special educational needs may have an Education, Health and Care (EHC) plan. This is a legal document which sets out the child/young person’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
12. The Council is responsible for making sure that arrangements specified in 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.
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. 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 considers 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.

What happened

15. Y has autism spectrum disorder, demand avoidance, selective mutism and a range of other special educational needs. In July 2020 the Council issued an EHC Plan naming a particular college where Y attended a vocational course.
16. At Y’s annual review in March 2021, Mr X raised concerns Y was asked direct questions despite her EHC Plan advising against this. It noted strategies were in place to support Y with her dyslexia, Y’s attendance was excellent, her work was up to date and she was happy she had chosen the right course.
17. Mr and Mrs X met with the college in November 2021 to discuss the provision in the EHC plan. In the notes of the meeting college staff recorded Mr X was concerned Y’s tutors had not read her EHC Plan. The college confirmed the tutors had read the plan and were aware not to ask direct questions of Y. They discussed ways Y could ask for help discreetly using some form of visual indicator. In Y’s EHC Plan it refers to Y lying a bottle down to indicate she needed support. They discussed that Y was happy to work at home on on-line learning days.
18. In November 2021 Mr X complained to the Council that the provision in her EHC Plan had not been delivered since it was made in July 2020. He asked the Council what steps it would take to ensure the college delivered the special educational provision in her plan.
19. The Council responded in December 2021. It said it had reviewed Y’s file, the electronic record and spoke with her casework officer. It said an officer was liaising with Y’s college to discuss the detail of the provision in the plan. It said it would work alongside the college to ensure any identified gaps were rectified. Once it had clarification from the college the officer would contact Mr X to discuss the outcome.
20. Mr X responded later that month. He said the response failed to set out what was found as a result of reviewing Y’s information. It had also failed to specify when the officer would liaise with the college and report the outcome to him.
21. The Council responded to Mr X in January 2022. It said it had received specification from the college outlining how each and every provision in Y’s EHC Plan was being delivered. It advised Mr X to contact the college in the first instance if he had any queries about the delivery of the provision. It said it was informed by the college that Y was making good progress on her course. It said it would continue to review her EHC Plan in line with statutory guidance.
22. Mr X remained unhappy and complained to us. He provided his views on the areas of Y’s EHC Plan which he considered the college was failing to deliver. In particular, he complained the following areas were not delivered:
1. specific self-esteem support around understanding her dyslexia and comorbid conditions with a weekly session to talk with a trusted adult about challenges of being dyslexic and ways of dealing with them.
2. a programme of social thinking which fits into the Preparation for Adulthood curriculum. The programme will be developed by an SLT and delivered by teaching staff, including two hours of training in social thinking for staff.
3. Two sessions of individual speech and language therapy per term delivered by a Speech and Language Therapist
4. An initial visit to spend time with parents, key worker, staff and Y will be required to set targets. This will be carried out by a Speech and Language Therapist.
5. The Speech and Language therapist will need to allocate three to four hours on an annual basis to write a report and attend the annual review.
23. In response to our enquiries the college set out how it was delivering Y’s EHC Plan. In relation to Mr X’s particular concerns, it said:
1. Self-esteem support was embedded in activities throughout the college day with positive reinforcement and praise during sessions. Y had an enhanced learning support assistant in all classes. Y had access to a mentor, support team and progression coach. General conversations around life and issues took place during the normal activities of the course. Y also received coaching sessions and developed strategies to cope with her dyslexia so it was not a barrier to her completing assignments.
2. The social thinking programme was delivered through tutorials where all learners were taught social values covering a number of topics. The college has provided evidence to show the course tutor and learning support assistants had undertaken relevant training in speech, language and communication.
3. A specialist external company delivered speech and language therapy. It said it could not be accessed on site due to COVID-19 so was accessed externally.
4. Targets were set as part of Y’s one-to-one tutorial sessions. Parents evenings were held over teams and no targets were discussed as feedback was positive.
5. The external speech and language therapy company attended Y’s annual review for 2020 and completed a report in March 2021.
24. The report prepared by the speech and language therapy company set out the support Y required, including a recommendation for two sessions per term delivered by a speech and language therapist.
25. Y has now left college. She passed her qualification, had an excellent college attendance record and undertook 150 hours of work experience. The Council has proposed ceasing Y’s EHC Plan upon the college’s recommendation following Y’s most recent annual review as Y had finished her education.

Findings

26. The Council was unaware until November 2021 about Mr X’s concerns. When he raised these it investigated and sought evidence from the college to show Y was receiving the provision set out in her plan. It was satisfied Y was making good progress.
27. The Council’s duty is to secure the provision in the plan but it was the college’s duty to deliver it. The college has explained how it met the provision in Y’s plan in response to Mr X’s concerns including his concerns in relation to social thinking and self-esteem. It has provided evidence to show relevant staff were appropriately trained. Although the self-esteem and social thinking provision was not delivered exactly as described in the EHC plan, on balance, the evidence shows Y received the provision in these areas. The Council was not at fault.
28. The evidence shows the speech and language therapist produced a report for Y’s annual review. However, Y’s EHC Plan set out that she should receive two sessions of speech and language therapy per term. The Council’s response stated this was provided by an external company, but I have seen no evidence this was delivered. On balance, I am more persuaded that Y did not receive this support. Although Y’s learning support assistants had received some training in this area, the plan specifically set out the requirement for individual speech and language therapy, delivered by a qualified therapist. The failure to provide this specific support was fault.
29. I cannot know what impact the missed sessions had on Y. Y has successfully completed her qualification and associated work experience with an excellent attendance record. The Council has also proposed ceasing Y’s EHC Plan as Y does not wish to continue her education. However, Y missed out on educational provision she was entitled to and should have received.

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Agreed action

30. Within one month of the final decision, the Council has agreed to pay Mr X £300, to use for Y’s benefit, to acknowledge the loss of educational provision due to the failure to provide the speech and language therapy set out in her EHC Plan.

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Final decision

31. I have completed my investigation. There was evidence of fault causing injustice for which the Council has agreed to a remedy.

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Investigator's decision on behalf of the Ombudsman