Summary: Ms B complained the Council failed to secure education, and education, health, and care provision for her son. Ms B said this affected his academic, social, and emotional progress. The Council was at fault for delays securing provision for Ms B’s son. These delays caused Ms B and her son injustice. The Council will pay Ms B a financial remedy, reimburse the cost of tutoring and secure any missed provision.

The complaint

1. Ms B, with the support of her solicitor, complained the Council failed to secure education provision for her son. She also complained it failed to secure the speech and language and occupational therapy (SALT) in his education health and care (EHC) plan. Ms B said this affected his academic, social, and emotional progress.
2. Matters in this case are ongoing. I have considered Ms B’s complaint up to November 2021 when she complained to the Council.

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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. 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:
• Ms B’s complaint and the information provided by her solicitor;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Ms B, her solicitor and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and guidance

8. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
9. Where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment. The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section G: Any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section I: The name and type of school.
11. The council must consult the school or college and consider their comments before deciding whether to name it in a child or young person’s EHC plan.
12. The council has a duty to secure the 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 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)
13. There is a right of appeal to the SEND (Special Educational Needs and Disability) Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. In an extended appeal, the tribunal can also make non-binding recommendations about health and social care aspects of EHC plans, provided those appeals also include education elements. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan is made and sent to the parent or a final EHC plan has been issued.
14. Infant classes must not contain more than 30 pupils with a single school teacher. Additional children may be admitted under limited exceptional circumstances. These children will remain an ‘excepted pupil’ for the time they are in an infant class or until the class numbers fall back to the current infant class size limit. Excepted children include children admitted outside the normal admissions round with Education, Health and Care Plans specifying the school. (Department for Education, School Admissions Code, 2014)

COVID-19

15. When England entered a national lockdown on 23 March 2020 schools were closed to most children. They remained open only to vulnerable children, and children of specified key workers. Schools reopened to all students in September 2020.
16. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility in dealing with EHC plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
17. From 1 May to 25 September 2020 the Regulations which provide most of the statutory timescales for the EHC needs assessments and plan processes were modified. The Amendment Regulations said where a Council decided it was necessary to issue an EHC plan following an EHC needs assessment and the incidence or transmission of coronavirus (COVID-19) made it impractical to do so within the 20 weeks, it must discharge its duty to do so as soon as practicable.
18. A second national lockdown came into force from November to December 2020. The third national lockdown was in place from January to March 2021. Schools closed again between 5 January and 8 March 2021.

Council’s complaint procedure

19. The Council has a two-stage complaint procedure:
20. Stage one: A senior officer from the service being complained about will oversee an investigation to try and resolve the issues. The Council will provide a written response within 20 working days.
21. Stage two: The Council will consider whether a stage two investigation is appropriate and tell the complainant within five working days. If the request is accepted, a central team who will independently review the stage one response and answer the stage two complaint within 20 working days.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. C has a diagnosis of Autism. C reached compulsory school-age in September 2020.
24. In July 2019, C started to attend Pre-School 1. Pre-School 1 asked the Council to assess C for an EHC plan in December 2019. The Council responded within six weeks and accepted the request.
25. The Council issued a final EHC plan for C in June 2020, 25 weeks after Pre-School 1 made its request. The Council did not name a specific school, instead it said C should attend a mainstream school. The plan stated from September 2020, C should receive:
• 20 hours support from a specialist support assistant each week.
• 14 hours direct SALT provision each academic year delivered by a qualified SALT therapist.
• a classroom observation from a specialist teacher in autism to decide what provision C needed.
26. The Council sent Ms B information about how to appeal to the SEND tribunal with C’s final EHC plan.
27. Ms B told the Council she wanted C to attend a school with an additional resource provision. An additional resource provision is designed to provide specialist and targeted support for children with long term special educational needs. The Council consulted with three schools in June 2020. Two said they could not meet C’s needs. School 1 said it felt it was unable to take C. It explained this was because it had not met C and therefore could not say whether it would be the right place for him, the cohort joining the school had a significant range of needs, and it had no spare support staff hours. School 1 did not have an additional resource provision.
28. In August 2020, the Council sent an amended EHC plan naming School 1. Ms B told the Council School 1 could not meet C’s needs and asked it why it had not consulted the other schools she suggested. The Council said it was School 1’s responsibility to meet her son’s needs and it would review C’s case at a panel meeting in September 2020. Ms B said she would not send C to School 1 because it could not meet his needs.
29. The Council consulted with schools that had additional resource provisions in September 2020. Ms B’s preference was for Schools 2 or 3 because they had additional resource provisions for autism. Neither school said it could not offer C a place.
30. The Council delayed taking C’s case to the panel meeting because it had not received responses from all the schools it consulted. C’s case was discussed at a panel meeting in October 2020. The Council advised the panel, ‘[C]’s Final EHCP was issued in July 2020, however he is not currently attending school- this is due to local primary schools not being able to meet needs and parents unwilling to send him into a unsuitable setting.’ It said School 1 could not meet his needs. The panel agreed C should attend a school with an additional resource provision.
31. The Council told Ms B it would consult with School 2 because School 3 could not offer him a place. However, the Council had consulted School 2 in September 2020 and it responded that it could not offer C a place.
32. The Council issued a final amended EHC plan in November 2020 and named School 2. The EHC provision in section F remained unchanged. School 2 could not accept C because it did not have any places available.
33. School 3 told the Council it could offer C a place if it funded an extra member of staff. The Council issued a second final amended EHC plan in December 2020 naming School 3, a mainstream school where he would attend an additional resourced provision unit. The EHC provision in section F remained unchanged.
34. In December 2020, an advocate for Ms B raised with the Council that despite agreeing to it, it had not included 1:1 support in C’s amended EHC plan or confirmed with School 3 that it would fund an extra member of staff. They said because of this, School 3 had not arranged to admit C despite it being named in his EHC plan. It asked the Council to amend the provision in his plan.
35. The Council emailed School 3 in January 2021 and confirmed it would fund an extra member of staff to support C. C started at School 3 in February 2021 on a reduced timetable for three mornings a week. His time in school increased each week and in May 2021 he started to attend full-time. School 3 told the Council it arranged the gradual increase in C’s attendance with Ms B.
36. Ms B appealed to the SEND tribunal in February 2021 against sections F and I of C’s EHC plan.
37. In June 2021, the SEND Tribunal issued a consent order. It ordered the Council to amend C’s EHC plan as agreed by both parties. The Council issued a final amended EHC plan in June 2021. However, it did not include all the agreed provision and it had to issue another amended EHC plan in July 2021. The plan named School 3. Section F included:
• 32.5 hours support from a dedicated teaching assistant each week to cover structured and unstructured times.
• 36 hours input from a SALT therapist a year. This included providing therapy for C, reviewing his progress and coaching staff.
• 12 hours input from an occupational therapist a year. This included providing therapy for C, reviewing his progress and coaching staff.
38. Ms B’s solicitor sent the Council a pre-action protocol in August 2021. It said the Council had not secured the SALT and occupational therapy in C’s EHC plan and did not provide him with education from September 2020 to February 2021. It asked the Council to secure the provision in C’s EHC plan and to consider providing compensation to the family for missed provision.
39. The Council responded in September 2021. It said School 3 reported all occupational therapy strategies and programmes were being followed and it had recruited a SALT therapist who would consider whether C’s missed provision could be made up. It recommended the solicitor make School 3 a defendant in any future Judicial Review suggesting it was responsible for not securing C’s EHC provision. It also advised the Judicial Review process was not designed to award financial compensation.
40. Ms B’s solicitor told the Council she was unhappy with its response and would proceed with an application for a Judicial Review. It said it would raise with the High Court that Ms B reported the Council asked School 3 to stop working with the family and had not secured the provision in C’s EHC plan. Ms B’s solicitor said the Council should consider compensating the family for its faults.
41. In response, the Council confirmed:
• Missed SALT would be made up.
• There was some delay securing an occupational therapy assessment for C but confirmed he was receiving the provision in his July 2021 EHC plan. It said it would commission a private occupational therapist to ensure any missed occupational therapy provision was made up.
• It would not consider compensation at this point as Ms B had not suffered any direct financial loss and it was addressing outstanding matters in dispute.
42. In October 2021, Ms B complained to the Council that it:
• did not undertake adequate statutory assessments before it issued C’s final EHC plan in December 2020.
• failed to request a social care assessment for C.
• did not specify the number of hours of occupational therapy C needed in his 2020 EHC plans.
• failed to provide SALT from September 2020 to September 2021.
• failed to provide occupational therapy from February 2020 to October 2021.
• did not secure education provision for C between September 2020 and January 2021.
43. Ms B asked for compensation and advised she was going to pursue a Judicial Review.
44. In November 2021, Ms B and the Council engaged in mediation. They agreed the Council would:
• Refer C to social care.
• Arrange for SALT to liaise with Ms B in accordance with C’s EHC plan.
• Send Ms B and School 3 C’s sensory profile and to complete an observation of C.
45. Ms B agreed to ask School 3 to hold an emergency EHC plan review.
46. School 3 held an emergency annual review for C in November 2021. Ms B raised that C had not received occupational therapy since 2020 and she had not been told about C’s new SALT programme. She asked for C’s EHC plan to be amended.
47. The Council responded at stage one of its complaint procedure in December 2021. It apologised for its delay responding to the complaint. It found:
• there was a place available for C at School 1 from September 2019 and this would have met his needs. It said if C had attended School 1, he would have received SALT.
• it made an error and did not include the agreed occupational therapy or SALT therapy provision in the final amended EHC plan it issued following the SEND tribunal in May 2021. It said it corrected its mistake and reissued the plan.
• C missed SALT provision, and this would be backdated.
• an occupational therapy assessment would take place in January 2022. It advised occupational therapy was provided through the NHS.
• it added 32.5 hours of 1:1 support from a dedicated teaching assistant each week to C’s EHC plan in May 2021 as part of the SEND tribunal process.
48. Ms D’s solicitor challenged the Council’s complaint response in February 2022 and asked the Council to consider it at stage two of its complaint procedure.

In March 2022, the Council apologised for its delayed response to the request. It said it had decided it would not consider the complaint at stage two, because:

• it provided a comprehensive and substantive response at stage one.
• it could not add anything further, and/or, provide the desired remedy through its corporate complaints process.
• Ms B could appeal to the SEND tribunal.

Analysis

49. C’s pre-school asked the Council to assess C for an EHC plan in December 2019. It took the Council 25 weeks to issue its final EHC plan. The Council issued the plan in June 2020 during the period when the Government had adjusted the timescales for issuing EHC plans to as soon as reasonably practicable. In these circumstances, I do not consider taking 25 weeks to issue an EHC plan was fault.
50. Ms B complained the Council did not undertake adequate statutory assessments or a social care assessment before it issued the final EHC plan. If Ms B was unhappy with the content of C’s final EHC plan, she could have appealed to the SEND tribunal and asked for an extended appeal so it could also consider the health and social care aspects the plan.
51. The Council named School 1 in C’s August 2020 EHC plan. Ms B said School 1 could not meet C’s needs and so she did not send him to the school. If Ms B was unhappy the Council named School 1 in C’s EHC plan, she could have appealed to the SEND tribunal. Ms B did not. However, in October 2020, the Council accepted School 1 could not meet C’s needs, from this date it had a duty to provide a placement that met his needs. I do not consider it reasonable to have expected Ms B to have used her appeal rights from the point the Council acknowledged the unsuitability of the School 1. Therefore, the Council was responsible for C’s loss of education and EHC provision from October to November 2020.
52. In November 2020, the Council named School 2 in C’s EHC plan. School 2 could not offer him a place. Naming a school that could not offer C a place was fault by the Council. The Council’s fault led to a delay of a month while it sought another placement for C.
53. As C had an EHC plan and the request for a place was outside the normal admission round, the Council should have considered directing School 2 to admit C as an excepted pupil. There is no evidence the Council considered this, which was fault.
54. In December 2020, it named School 3 in C’s EHC plan having agreed it would fund a full-time member of staff to support C. Despite being chased by both Ms B and School 3, the Council did not confirm it would pay for an extra member of staff until the middle of January 2021, a month after the EHC plan was issued. This delay was fault by the Council, and it delayed School 3’s recruitment process and C’s start at the school.
55. C started at School 3 in February 2021. School 3 started C on a reduced timetable that increased each week until May 2021, when he attended full-time. School 3 told the Council it discussed C’s transition with Ms B and she appeared happy with the arrangement. There is no evidence Ms B told the Council at the time she was unhappy with C’s gradual transition into School 3. As the Council was not aware Ms B was unhappy, there was no reason for the Council to question School 3’s transition arrangements.
56. The Council’s delays meant C missed education provision and EHC provision between October 2020 and February 2021. In total, he missed eleven term-time weeks of provision. Although four of these weeks were when schools were closed between January and March 2021, C could have accessed online learning, or attended School 3 in person as Ms B was a keyworker. Ms B paid for C to have weekly tutoring sessions during this period. She was also put to time and trouble chasing the Council to fulfil its statutory responsibilities.
57. The Council could not provide specific details of the hours of SALT provision C received between February and November 2021 or the hours of occupational therapy he received between July and November 2021. This was fault. Both these provisions were in section F of C’s EHC plans. It was therefore the Council’s responsibility to ensure they were delivered, not School 3 or the NHS. Because of this fault, it is unclear whether C received the provision he was entitled to.
58. The Council delayed responding to Ms B’s complaint at stage one and two. At stage one it took the Council twice as long as it should have to respond and at stage two it took an extra 15 days to tell Ms B it would not consider her complaint further. These delays caused Ms B frustration.

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Agreed action

59. Within one month of the final decision, the Council will:
• Pay Ms B £700 for the seven term-time weeks of education provision C lost because of the Council’s faults between October 2020 and December 2020. This should be used for the benefit of C’s education.
• Pay Ms B £200 for the four term-time weeks of education provision C lost because of the Council’s faults between January and February 2021 when schools were closed due to COVID-19. This should be used for the benefit of C’s education.
• Reimburse Ms B for the term-time tutoring sessions she paid for between October 2020 and February 2021.
• Pay Ms B £250 for the time and trouble she was put to chasing the Council and the frustration caused by its delays.
60. Within two months of the final decision, the Council will:
• Provide Ms B a list of the dates and duration of SALT sessions provided to C between November 2020 and November 2021. If this is less than the provision stipulated in his EHC plans, the Council should give Ms B a timetable showing when missed sessions will be made up.
• Provide Ms B a list of the dates and duration of occupational therapy sessions provided to C between July and November 2021. If this is less than the provision stipulated in his EHC plans, the Council should give Ms B a timetable showing when missed sessions will be made up.
• Share a copy of our decision with relevant staff to highlight the faults found in this case.
• Remind staff involved in finding educational placements to consider directing admittance when a child meets the criteria for an ‘excepted pupil’.
• Consider introducing measures to check amendments to EHC plans made following SEND Tribunals fully and properly reflect the orders.
61. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

62. I have completed my investigation and uphold Ms B’s complaint. Ms B and C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman