Summary: Mrs X complained the Council failed to ensure provision in her daughter’s Education, Health and Care Plan was delivered. We found fault by the Council for delays in securing some provision set out in the Plan. The Council has agreed to provide Mrs X with an apology and a symbolic payment to acknowledge the loss of provision to her daughter.

The complaint

1. The complainant, whom I refer to as Mrs X, complained the Council failed to ensure her daughter, whom I shall refer to as B, received the Speech and Language Therapy (SALT) support and Occupational Therapy (OT) support set out in her Education, Health, and Care Plan (EHCP) since September 2021.
2. The support was to enable a smooth transition for B’s move to secondary school this year; Mrs X said the lack of provision negatively impacted on B’s ability to make progress and prepare her for a new setting.

Back to top

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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I discussed the complaint with Mrs X’s representative, Mrs Y, who is dealing with the complaint on her behalf, and considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and Policy

Education, Health, and Care Plans (EHCPs)

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP 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 EHCP 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 EHCP. 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 EHCP 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.
15. An EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

What happened

16. Mrs X’s daughter (B) has Autism Spectrum Disorder (ASD) and has an EHCP.
17. In July 2021, after an appeal against section B, F and I of B’s EHCP, the Tribunal ordered the Council to amend the Plan and implement the changes agreed between the parties. This was through a Final Working Document dated 3 June 2021. On 22 September 2021, the Council issued an amended final EHCP for B.
18. On 9 November, Mrs X complained to the Council for not delivering the Speech and Language Therapy (SALT) and Occupational Therapy (OT) as detailed in B’s EHCP.
19. On 19 November, an Annual Review was held. The paperwork showed actions agreed included “to seek and organise the provision of the OT and SALT that has been written into the EHCP” as soon as possible.
20. On 9 December, the Council’s response to Mrs X’s complaint said since the Tribunal’s Order in July, it had taken time for the NHS SALT team to assess B due to Covid-19 restrictions and she was seen in November. On 3 December, the SALT team advised it would not provide the provision as it felt her needs could be met by school staff who were autism trained.
21. The Council apologised to Mrs X that provision had not been put in place in a timely manner and confirmed it was seeking to engage independent providers to deliver the support outlined in the EHCP.
22. On 10 December, a previous representative of Mrs X was dissatisfied with this and did not accept the Council’s reasons for delay. He responded the Council had not offered any explanation for not delivering OT support and he could not understand why the Council had not secured the provision for B as required.
23. On 22 December, the Council responded the SALT team advised it needed to visit B at school to determine when and how it would deliver the therapy specified in the Plan, with the initial visit taking much longer than expected. When the SALT team confirmed it would not provide the support, the Council outlined what efforts it had made to secure SALT and OT provision. External providers had been approached and it was awaiting quotes and potential start dates. It apologised and anticipated both provisions would be in place at the beginning of the new term.
24. A final amended EHCP was issued by the Council in March 2022, following from the Annual Review held in November 2021.
25. In April 2022, Mrs X complained to the Ombudsman, with Mrs Y acting on her behalf. She said provision had still not been put in place which was impacting upon B’s ability to make progress with social interactions ahead of her move to secondary school.

The Council’s response to my enquiries

26. In response to my enquiries, the Council sent me records and communications discussing what actions had been put in place and when.

Speech and Language Therapy (SALT)

27. The Council provided the NHS SALT report dated 6 December 2021. After the visit in November, the therapist concluded B was above average when compared with other children of the same age, with high scores in formal assessments of language and vocabulary skills. They noted B had some difficulties with real life situations when dealing with social interaction but was deemed as typical of children with ASD. It was likely to be an ongoing area of development which could be supported through strategies in school, with no need for further SALT intervention.
28. I asked the Council how the school had provided the SALT provisions detailed in the June 2021 working EHCP used after the Tribunal Order:
1. “All staff working with B will have one hour minimum training Blank Level Questions delivered by a SALT”;
2. “B will have a session of SALT each half term with a therapist who is experienced with ASD to set appropriate strategies and systems to support her learning. The session needs to be given in conjunction with a member of the trained teaching staff”;
3. “The SALT will need to implement a social communication programme. A social thinking group will need to be carried out by a trained teacher with up to four peers twice weekly for 30-45 minutes”; and
4. “The SALT will need to allocate 3-4 hours on an annual basis to reassess, report write and attend the annual review”.
29. In response to my enquiries, the Council set out how the school was delivering the SALT aspects of B’s EHCP. In relation to the above points, it said:
1. Blank training for staff did not take place until May 2022. The Council said it was not done sooner as B had been discharged from the SALT service in December 2021. The NHS later agreed for this additional SALT work at the Council’s request on 8 March 2022. The training session was then planned and agreed;
2. It had difficulty in recruiting an independent therapist. It had contacted two external providers on 6 December 2021 and followed up later that month and in January 2022. In February 2022, after one of the providers withdrew its offer to provide sessions, the NHS agreed to deliver SALT support to the end of the school year. A therapist visited B in school: two sessions in each of the months of March, May, and June, with reports written after these visits;
3. A social communication group was set up with B’s one-to-one adult leading a social thinking programme with daily ten-minute sessions and one 40-minute session per week, using a programme called Social Speaking. The Council sent me a copy of B’s school timetable from September 2021 detailing this weekly provision; and
4. I did not include this query to the Council, but the annual review paperwork in November 2021 said the SALT did not attend.
30. The above SALT provisions remained in the March 2022 final EHCP.
31. The reports by the therapist conducting the SALT visits in school in 2022 detailed they had observed B who had good interactions and recommended areas of development for school staff to deliver.

Occupational Therapy (OT)

32. I asked the Council the same question in Paragraph 28, but in relation to OT provision:
1. “B will access a sensor motor learning twice daily for 10 minutes during the morning and afternoon provided by a one to one delivering an OT programme created by an occupational therapist trained in sensory integration Level 3 or equivalent”;
2. “The one-to-one working with B will have OT support through termly three hour reviews”;
3. “B will access a fine motor coordination skills programme either one-to-one or in a small group of no more than three children daily for 10 minutes. The OT will provide appropriate programmes which will be reviewed termly”; and
4. “B will undertake hand strengthening activities a number of times per week as advised by the OT”.
33. In response to the OT aspects, the Council said:
1. The OT report for the annual review dated 29 December 2021, after observing B in the class, stated the one-to-one said B was completing a range of activities in movement breaks, including fine motor activities. With this report, the therapist provided ideas for calming and organising activities to be delivered by school staff, but there were no therapists in the department that held the qualification as specified in the EHCP.
2. The therapist conducted a further review in school in March and May 2022.
3. The therapist reported B engaged in short fine motor activity sessions daily in the morning and at times in movement breaks, with opportunities to practice these skills in other activities provided as part of the school curriculum. The OT would provide ideas and guidance on these sessions for school staff, but they felt it did not need a termly review as B was making positive progress and coping better at school.
4. The Council stated from September 2021, hand strengthening techniques had been demonstrated to B’s one-to-one by the Visual Impairment Team and these are done twice daily with B at school.
34. Draft EHCPs in February 2022 and the final version in March added provisions that the OT would:
• provide general fine motor ideas and points to consider for school.
• provide general calming and organising ideas for use in sensory motor sessions or movement breaks.
• offer a block of sessions to provide targeted opportunities to work on postural stability, balance, cutlery and spreading on toast.
• offer support, if needed, with transition planning. This may involve attendance at a transition meeting or an access visit to the secondary school if required.
35. The Council said it offered four OT sessions for B at an external centre to meet the extra provision above in February 2022. Mrs X declined as, in her view, all provision should be completed in school hours at school. The Council explained the centre was the preferred location for the sessions because of the equipment available and appropriate space for B to practice her physical skills.
36. On 5 May 2022, the OT observed B in the classroom and reviewed her fine motor skills. They concluded B had ongoing frequent opportunities to practice her fine motor dexterity and hand strength at school, with improvements being made. Her one-to-one reported B was making progress at talking through any issues as they arose. The OT said no specific direct intervention was needed.
37. On 13 May 2022, the OT completed an access visit to B’s new secondary school to review access and facilities for B from an OT perspective. They did not identify any significant concerns with the physical environment for B to move around and observed there may be less demand from a sensory perspective which could benefit B’s coping skills.

Analysis

38. The Tribunal Decision was issued in July 2021 and the Council has a statutory duty to secure the provision agreed in the EHCP; accounting for school holidays, it should have been in place from the start of the school year in September 2021.
39. The school said classroom based SALT activities have been in place since September 2021 as part of B’s weekly school schedule. But the Blank Level training for staff was delivered two terms late in May 2022, and the half termly SALT sessions were delivered a term late, in March 2022 (missing three sessions). The Council explained the delays in waiting for a SALT assessment and acted promptly to try and source other providers when the NHS initially said it would not deliver the support. But it failed to get this provision when required and this is fault. However, I have noted the efforts made by the Council to get something in place and that extra sessions for B (two each half term) have been carried out since.
40. In speaking to Mrs Y, there was dissatisfaction with the content of these SALT sessions being observations and assessment rather than direct delivery as per the Plan. However, the SALT reports mention demonstration of techniques and strategies to staff for B’s progress so I am satisfied B has received appropriate provision.
41. With OT provision: the therapist sent guidance on ideas and activities for B for school staff at the end of December 2021; this was a term late, which is fault. I have noted OT provision described in the Plan is mainly classroom-based and the therapist was satisfied B was receiving elements of that provision daily at school. Even though it was not a specific programme or by a therapist with specified qualifications as described in the June 2021 Plan, which was fault, on balance, this provision at least covered the suitable areas of need. I have therefore concluded this caused no significant injustice to B.
42. The Council offered appropriate external OT sessions to meet the provision added in the March 2022 EHCP, although Mrs X declined this for her own reasons. I do not find the Council at fault for this.
43. The transition planning OT visits were fulfilled in May 2022 with no significant concerns raised about B’s progress.
44. In assessing injustice, the delay would have led to frustration and uncertainty for Mrs X. I cannot know the impact the delayed provision had on B. Professional assessments had noted B’s progress and did not indicate a significant detriment to her education or wellbeing. However, B missed out on educational provision she was entitled to and should have received sooner.

Back to top

Agreed action

45. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
46. Within one month of the final decision:
• Provide an apology to Mrs X for the delays in securing provision for B; and
• Pay Mrs X £300 to acknowledge the delay in securing SALT and OT provision in B’s EHCP. This is to be used for B’s educational benefit.

Back to top

Final decision

47. I found the Council at fault which caused a loss of provision to B. The Council has agreed to take action to remedy this, and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman