Summary: Mrs X complained about the Council not delivering specialist services outlined in her son’s Education, Health and Care Plan since September 2020. We have found fault because the Council has failed to deliver specified provision. Mrs X has suffered avoidable frustration and distress in getting the issues resolved and her son has missed services he should have received. To remedy the injustice caused by this fault, the Council has agreed to apologise to Mrs X and Mr Y, make a payment to Mrs X and organise the provision Mr Y has missed.

The complaint

1. Mrs X complains the Council has failed to provide her son, Mr Y, with specialist services included in his Education, Health and Care Plan (EHCP) since September 2020. She also complains the Council failed to ensure the EHCP reflected her son’s needs. Mrs X says this has caused her distress and frustration and that her son has not met the outcomes specified in his EHCP due to missed provision.

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What I have investigated

2. Paragraph seven (below) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to September 2020 as the issues have been ongoing since this time.
3. I have also exercised discretion to investigate the provision delivered to Mr Y during the time it had been removed from his Fourth Amended EHCP, due to the unique and individual facts presented to me in this complaint.

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The Ombudsman’s role and powers

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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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.
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

10. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

12. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person.  
13. 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.
14. 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)
15. There is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 has been made and sent to the parent or a final EHCP has been issued.

What happened

16. Mrs X has an adult son, Mr Y, who has an EHCP. Mr Y is currently attending a mainstream college in his local area.
17. In the academic year 2020-21, Mr Y was a weekly boarder attending an independent school for pupils up to 19 years of age, catering for those with special educational needs. He had been a pupil here since September 2019.
18. In Mr Y’s Third Amended EHCP, from 2019, a range of provision for both speech and language therapy (SALT) and occupational therapy (OT) was listed in section F of the plan. This included direct SALT and OT contact. The Council says that during the academic year 2020-21 it delegated Mr Y’s provision to the school to be delivered by the school’s in-house therapists.
19. In February 2021, Mr Y’s annual EHCP review meeting took place. The Council later issued his Fourth Amended EHCP at the beginning of June 2021. This removed all direct SALT and OT contact. Mrs X complained to the Council to voice her concerns.
20. Mrs X later exercised her right of appeal to the SEND Tribunal regarding the contents of the EHCP, in mid-June 2021. She appealed Section B (special education needs), Section F (special educational provision) and Section I (educational placement).
21. Two days after Mrs X filed her tribunal appeal, the Council responded to her complaint. In its reply, the Council:
1. apologised for and noted errors in the EHCP, including some advice regarding therapies;
2. confirmed it was working to amend the EHCP in light of its error; and
3. confirmed it was committed to trying to facilitate Mr Y attending the college of his choice.
22. At the beginning of September 2021, Mr Y started at his new college. The Council and college representatives met with Mrs X. In this meeting, the Council:
1. recognised tribunal proceedings had been started;
2. confirmed it had sent out a draft Fifth Amended EHCP; and
3. advised the meeting was to discuss what therapy would be provided for Mr Y in the new environment.
23. The meeting closed by agreeing that direct and indirect SALT and OT would be organised for Mr Y within the college setting. Discussions with the Council’s tribunal team regarding the next version of the EHCP would continue, pre-hearing.
24. A SEND Tribunal hearing was held in December 2021 and the Council issued a Fifth Amended EHCP early in January 2022. Direct SALT and OT contact time was identical to that agreed in the September meeting.
25. Section F of Mr Y’s Fifth Amended EHCP specified SALT provision as follows:
1. one hour per week of 1:1 time with a therapist;
2. 30 minutes per week for the therapist to liaise with relevant college staff and other professionals (including Mrs X once per half term); and
3. another two hours per year for the therapist to prepare a report for annual review.
26. The plan also specified OT provision of:
1. 45 minutes per week of 1:1 time with a therapist;
2. 15 minutes per week to liaise with relevant staff (including Mrs X once per term);
3. two hours per year to develop the programme of support; and
4. another two hours per year for the therapist to prepare a report for annual review.
27. Correspondence shows that during January 2022 the Council had sourced therapists to deliver provision but were struggling to confirm mutually convenient times between Mr Y’s college timetable and the availability of the therapists. Mrs X made a new complaint to the Council early in February 2022 as the provision listed in the most recent EHCP (and which had been agreed in September 2021’s meeting) had still not started. SALT and OT began during the spring term of 2022.
28. Late in May 2022, Mr Y’s occupational therapist said she could no longer offer the required input for Mr Y and asked the Council to find an alternative provider for him.
29. A Sixth Amended EHCP was issued in August 2022, following review in February 2022. Section F provision in the Fifth and Sixth Amended EHCPs was identical.
30. The Council confirmed that as of September 2022, SALT would continue to be provided by the existing therapist and that Mrs X had sourced a potential OT provider for the Council to liaise with.
31. Mrs X has confirmed that as of December 2022, new OT provision has been commissioned and is now underway. She also confirmed that SALT has continued in college this year with the same therapist as last year, although some sessions have already been missed.

Analysis

EHCP provision during academic year 2020-21

32. As part of my enquiries to the Council, I asked it to provide me with details of the level of SALT and OT delivered to Mr Y during this time and to explain any missed provision. The Council responded by listing Section F of Mr Y’s EHCP at the time. The Council also said it had delegated the delivery of this provision to the school as the school had in-house therapists but provided no further evidence of whether Mr Y received his full entitlement during the year.
33. It is clear that Mr Y received some provision as evidenced in reports prepared for his annual review, but these were all before the end of January 2021.
34. Mrs X complains that school failed to deliver all of the Section F provision and that Mr Y was further disadvantaged due to the lockdown of early 2021.
35. On balance and due to a lack of any other evidence presented by the Council, my view is that it is likely Mr Y missed some of the provision set out in his EHCP. As detailed in paragraph 14, the Council remains responsible for its delivery. Failure to secure this is fault. It would have impacted the progress Mr Y could make against his targets especially when Mr Y, a vulnerable young person, was due to move to mainstream college at the end of the year. I have made a recommendation to remedy this injustice below.

Organising SALT and OT provision

36. The Council agreed to commission SALT and OT provision in the September 2021 meeting with the college and Mrs X, even though tribunal proceedings were underway at the time. The Council had no legal duty to do so at this time as provision was not specified in the Fourth Amended EHCP. However, the Council had recognised errors were made and therefore agreed to commission services in order to deliver SALT and OT provision. The Council confirmed this in documents sent in response to my enquiries.
37. In the analysis of missed SALT provision below, I have included the period of September 2021 to January 2022 as well as the rest of the academic year. The tribunal hearing did not contain any discussions relating to SALT. Nor was it part of Mrs X’s appeal. As the Council agreed the provision in September, there was no reason for Mrs X to expect it would not take place.
38. In the analysis of missed OT provision below, I have not included the period of September 2021 to the beginning of January 2022 when the Fifth Amended EHCP was issued. OT provision was disputed as part of the tribunal hearing. On this basis, the Ombudsman cannot remedy any missed provision, despite it being agreed, as OT was subject to tribunal proceedings. Any related OT discussions are too closely linked for us to be able to consider any missed provision during this time.
39. I also acknowledge some of the problems faced by the Council. It has provided evidence to explain some of the commissioning and timetabling difficulties around organising Mr Y’s SALT and OT before the occupational therapist then said in June 2022 she no longer had enough availability to work with Mr Y.

SALT

40. The Council accepts that Mr Y has not received as many SALT sessions as he should have done in the academic year 2021-22. It stated he is owed 25 hours SALT out of the 38 hours due to him.
41. In contrast to this, the provision set out in paragraph 25 (above), echoed the provision agreed in September 2021. This equals 61 hours in a full 39-week academic year. I calculate Mr Y to have missed approximately 42 hours of direct and indirect SALT contact which is around 69% of the time allotted to him. This equates to around six months’ worth of missed provision.
42. The Council has failed to deliver provision agreed with Mrs X and later formalised in the EHCP which is fault. The lack of SALT will further have impacted the progress Mr Y was able to make against his targets and caused him and his family injustice. I have made a recommendation to remedy this below.

OT

43. The Council calculated that Mr Y was due 43 hours OT support during the academic year 2021-22. It stated it owes Mr Y 25 hours of OT after three sessions had been delivered to him.
44. Calculating the provision set out in Section F of the Fifth Amended EHCP (see paragraph 26 above), from January 2022 to July 2022, my view is that Mr Y should have received a total of 29 hours direct and indirect support during this time. The 43 hours calculated by the Council is likely to cover the entire academic year. September to the beginning of January is not included in my calculations.
45. As Mr X received only three sessions, he is therefore owed 26 hours OT support (direct and indirect) including programme review and development time. The Council has provided no evidence of review and development work carried out by the therapist other than a very brief ‘summary of recommendations’. I calculate Mr Y to have missed around 90% of the time allotted to him equating to around five months’ worth of missed provision from January to July 2022.
46. The Council has failed to deliver the specified provision which is fault. This would again have caused significant injustice to Mr Y. I have made a recommendation to remedy this below.
47. Although the Council had no legal duty to provide OT during the period of September 2021 to the beginning of January 2022, it is clear that provision had been agreed by the Council. In doing so, the Council raised Mrs X’s expectations but then failed to deliver on the agreement made. This is fault. Mrs X would have expected the OT to be delivered and failure to do so would have added to the injustice Mr Y suffered. I have made a recommendation to remedy this below.

Ongoing injustice

48. Whilst it is clear Mr Y has received some SALT and OT during the current academic year, it appears that some SALT has already been missed and that OT provision was not organised until recently as a potential provider had still not been confirmed by the end of September 2022.
49. Taking this into account, it seems likely that Mr Y may also have missed further EHCP provision in the current academic year. I have made a recommendation below to address this.

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Agreed action

50. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
1. apologise to Mrs X and her son Mr Y;
2. pay Mrs X £200 to acknowledge the distress and avoidable frustration caused to her family and the time and trouble taken to bring her complaint to the Ombudsman;
3. pay Mrs X a symbolic payment of £300 to recognise the missed opportunity caused by the likelihood of missed provision set out in paragraph 35;
4. pay Mrs X a symbolic payment of £300 to recognise the missed opportunity caused by the Council’s failure to deliver OT after raising her expectations that it would do so (see paragraph 47);
51. Within eight weeks of the date of my final decision:
1. ensure the therapists involved in delivering SALT and OT to Mr Y assess the viability of catch-up sessions for missed provision of SALT from September 2021 to July 2022 and of January to July 2022 for OT.
• If the therapists’ assessments conclude this is a viable option, the Council should organise a catch-up timetable with the college, professionals delivering the services, Mrs X and Mr Y. Any catch-up sessions should begin within one month of the assessment if therapists see this as a viable option. The Council should consider arranging sessions to be held outside of the college setting if Mrs X and Mr Y agree;
• If a therapist's assessment concludes delivery of missed provision is not possible the Council should:
1. pay Mrs X a total of £1,800 in recognition of six months of missed SALT provision during the academic year 2021-22, at an amount of £300 per month;
2. pay Mrs X a total of £1,500 in recognition of five months of missed OT provision from January to July 2022, at an amount of £300 per month; and
2. make immediate arrangements for Mr Y to receive extra SALT and OT sessions to account for any missed provision so far this academic year, in accordance with his EHCP. The Council will confirm the dates and availability of these sessions with Mrs X and Mr Y in advance. The Council should consider allowing these sessions to be held outside of the college setting if Mrs X and Mr Y agree.
52. The payments recommended above are in line with our Guidance on Remedies.
53. Any payments made to Mrs X relating to lost provision should be used for the benefit of Mr Y’s education.

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Final decision

54. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Parts of the complaint that I did not investigate

55. I did not investigate any issues related to the contents of the Fourth Amended EHCP that were considered by the SEND Tribunal. We cannot investigate matters the Tribunal has already considered, or anything inseparable from those matters.

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Investigator's decision on behalf of the Ombudsman