Summary: Mrs X’s daughter, Y missed out on provision set out in her Education Health and Care Plan. The Council was at fault for some of the delays in meeting the provision. The Council agreed to remedy the injustice caused to Y and her family.

The complaint

1. Mrs X complained the Council failed to ensure that her daughter, Y received all of her provision set out in Section F of her Educational Health and Care Plan (EHC Plan) once she stopped attending school. The provision included speech and language therapy (SALT), occupational therapy (OT) and emotional literacy support assistant (ELSA) sessions. Mrs X said that Y has regressed in all areas due to not receiving the provision she needs.

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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)

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How I considered this complaint

4. I considered Mrs X’s complaint and spoke to her about it.
5. I also considered the Council’s response to Mrs X and to my enquiries.
6. Mrs 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

Legislation

7. A child with special educational needs (SEN) 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 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 I: The name and/or type of school.
8. 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.

Guidance for Education Otherwise Than At School (EOTAS)

9. The guidance sets out the minimum requirements that apply to EOTAS provision. It sets out a flexible approach which recognises the diverse individual needs of pupils. It states that EOTAS is not a duplication of mainstream education and is not a standalone alternative. As well as educational progress, EOTAS focuses on helping children to address and overcome the social, emotional and behavioural difficulties which are preventing them from accessing learning.

What happened

10. Mrs X’s daughter, Y has SEN and an Education Health and Care Plan (EHC Plan). Mrs X said Y has been unable to access any classroom environment due to her anxiety disorder since December 2020. The Council held an emergency Annual Review and concluded that Y’s educational provision was not meeting her needs and objectives.
11. Mrs X wrote to the Council in June 2021 to confirm Y needed a bespoke curriculum with Education Other Than At School (EOTAS). At this stage, the Council was of the view that Y required a special school placement.
12. The Council issued an amended EHC Plan in June 2021 which specified the type of placement, namely ‘a specialist school able to cater from ASD, sensory and social communication skills’.
13. The Council liaised with Child and Adolescent Mental Health Services (CAMHS) which advised that Y was anxious when talking about classrooms and displayed physical panic symptoms. At this time, no school settings indicated it could meet Y’s needs.
14. The Council made referrals to a variety of alternative providers, therapists and tuition agencies. I have seen the email exchanges between the Council and the various organisations. These exchanges continued into 2022.
15. On 6 August 2021, the Council agreed that Y was unable to attend a school setting as a result of her mental health needs and would therefore be recorded as EOTAS. In September, Mrs X accepted a formal placement for Y for Equine Therapy.
16. Mrs X and the Council regularly emailed and discussed the occupational therapy (OT) and speech and language therapy (SALT) provision Y needed. Mrs X explained that Y could not have the therapy at home as it is Y’s ‘safe place’. The Council explored other potential venues that could be used and the cost implications.
17. In January 2022, the Council sent Mrs X the amended EHC Plan as per a recent Tribunal Order. This was finalised in March 2022.
18. Section F of the Plan includes:
• a weekly individual or paired session with a speech and language therapist for a minimum of 45 minutes.
• 39 individual OT sessions per annum to be delivered flexibly. 45 minutes.
• Weekly therapy for 40 minutes per week using strategies and techniques to be devised by the therapist to train her how to manage her emotions and express her feelings to be delivered by a practitioner experienced in working with young people
19. Mrs X regularly asked the Council for updates as to whether suitable therapists had been found. I have seen emails where the Council lists all the therapists it had contacted and reasons why they are unsuitable/unavailable. The majority had no capacity but some offered to put Y on their waiting lists. From the evidence I have seen, the Council did not do this.
20. To date, Y is still not receiving all the therapy provision set out in her EHC Plan. The Council continues to make referrals to SALTs and OTs.

My findings

21. Y has been out of a classroom environment since December 2020 although she remained on roll and benefitted from some provision from a specialist school until June 2021. The Council were aware that Y’s educational provision was not meeting her needs and objectives from December 2020.
22. From the evidence I have seen, the Council extensively sought providers to ensure the provision within Y’s EHC Plan was delivered from April 2021. An education package which included an alternative provider has been in place from September 2021.
23. However, there is no evidence that Y has received the therapy provision set out in her EHC Plan. The Council said the COVID-19 pandemic continues to impact on the health care system as many therapists have no capacity. This is due to the demand of individuals who did not receive therapy support in a timely manner during the pandemic.
24. I recognise the capacity issues of therapists. However, there were instances when the Council failed to add Y’s name to waiting lists which means Y has been without therapy longer than she should have.
25. I have therefore found the Council at fault for some of the delays Y has experienced in getting the therapy she needs.

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Agreed action

26. Within 4 weeks of my decision, the Council agreed to:
1. Apologise to Mrs X for the delay in arranging provision for Y.
2. Pay Mrs X £200 for the time and trouble it has taken for to pursue this complaint
3. Pay Mrs X £300 for the avoidable distress caused to Y and the rest of the family as a result of the Council’s delay arranging provision.
4. Pay Mrs X £4600 for the missed provision. This is based on £200 a month from December 2020 in line with our Guidance on Remedies. This should be spent on educational benefit for Y to address the missed provision.
27. Within 12 weeks of my decision, the Council agreed to:
1. demonstrate that it has made progress towards securing suitable therapy provision as required by Y’s EHC Plan.

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Final decision

28. I have found fault with the Council for some of the delays in meeting the provision required by Y’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman