Summary: The Council was at fault because it did not provide or arrange all the activities in line with Y’s Education Health and Care Plan. The Council will apologise and make payments to reflect the lost provision.

The complaint

1. Ms X complained about her daughter Y’s Education Health and Care (EHC) plan. She said Surrey County Council (the Council failed) to provide the ‘heavy workload’ activities. Ms X said this caused her avoidable confusion and time and trouble and meant Y has not been getting all the education specified in the plan.

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The Ombudsman’s role and powers

2. 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. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect them to appeal. Decisions which are appealable and usually out of our remit include the suitability of the provision in Section F of an EHC Plan.
3. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed where it is linked to the matters appealed. So, the Council’s actions during that period are outside our remit. It also means we cannot seek a remedy for lack of education or provision during that period. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
4. 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)
5. 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)
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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How I considered this complaint

7. I considered the Council’s responses to the complaint and documents in this statement. I discussed the complaint with Ms X.
8. Ms X and the Council 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

Relevant law

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 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.
10. 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 2014). 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)

What happened

11. Y has autism and has an EHC plan. She is in Year 6 and goes to a mainstream primary school.
12. The Council issued a final EHC plan for Y at the start of May 2021. Section F (educational provision) included the following:

“Y will have exercise/physical routines three to four times a week that demand heavy-load work. Physical routines will promote strength, balance, co-ordination, motor planning, sensory processing as well as alertness levels, responsiveness and work speed. Activities include horse-riding, swimming, martial arts and a good range of non-sedentary routines like helping with shopping and gardening”

13. At the start of June, Ms X appealed to the SEND Tribunal about various issues including the heavy workload provision in Section F.
14. Ms X complained to the Council about the school not providing the activities in the previous paragraph. The Council’s first complaint response in September said:
• Y’s school expressed concerns about how it would provide the activities
• The OT who wrote the report referenced in the May EHC plan said she had not meant the activities to go in Section F.
• The SEN case worker and the OT service was working to identify how this could be delivered in school and to organise funding.
15. The Council issued an amended final EHC Plan in October after Ms X had lodged her appeal to the Tribunal. The October plan did not include any of the heavy workload activities described in paragraph fourteen
16. Ms X escalated her complaint to the second stage of the Council’s complaints procedure. The Council’s second response said:
• The Council had ‘updated’ Y’s EHC Plan since her complaint and this would form part of the appeal to the Tribunal
• The tribunal officer had requested the updated plan because the OT confirmed the wording was intended as a recommendation/guidance but was incorrectly recorded on the EHC plan.
• It was important the Council corrected mistakes as soon as they were identified.
17. The SEND Tribunal heard the appeal at the start of April 2022. It decided the disputed provision was educational and it could be provided within school hours if necessary. The Tribunal said it was clear these activities educated and trained Y in balance and co-ordination.
18. After the Tribunal, the Council issued a final EHC plan in the last week of April which reinstated the heavy workload provision as it originally appeared in the May 2021 plan.

Findings

19. The Council should have ensured Y’s heavy workload provision was secured and delivered according to the EHC plan of May 2021. It did not do so even when Ms X raised concerns about this. There was a failure to act in line with Section 42 of the Children and Families Act 2014 between May and June 2021 when Ms X appealed and this was fault.
20. The Tribunal reinstated the provision in April 2022. And still the Council has not put in place arrangements to deliver it or to have the school deliver it. This is a further and continuing failure to act in line with Section 42 as I have set out above. Y continues to be without the education provision to which she has a legal entitlement.

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Agreed action

21. Without one month of my final decision, the Council will:
• Apologise for the fault I have identified and pay Ms X £250 to reflect her avoidable distress
• Pay Y £120 a week to reflect the cost of the lost heavy workload provision from May to June 2021. This is a total of four weeks lost provision so £480. I have calculated the £120 weekly figure based on the typical cost of private/one-to-one horse riding and an hour of individual swimming in Surrey which is £60 an hour. This funding of two hours could be spread across three or four sessions each week in line with the wording of the EHC plan.
22. At the time of writing this statement, Y is still not receiving the disputed provision. So, the Council will:
• continue to pay Y £120 for each term-time week from the last week in April 2022, when the post-Tribunal EHC plan was signed off until appropriate arrangements for delivering the provision are in place.
• provide evidence that provision is in place and being delivered within two months of my final decision statement.
23. I have not recommended a payment for the period June 2021 to the last week of April 2022 because of the legal case in paragraph three. We cannot investigate or remedy the consequences of a decision if investigation of the decision itself is excluded from our remit.

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Final decision

24. The Council was at fault because it did not provide or arrange all the activities in Y’s EHC plan. The Council will apologise and make payments to reflect the lost provision. I have completed the investigation.
25. I have shared a copy of my final statement with OFSTED in line with our information sharing agreement.

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Investigator's decision on behalf of the Ombudsman