Summary: Mrs X complained that the Council failed to provide her son with the occupational therapy and speech and language therapy that was set out in his education health care plan. We find the Council at fault.

The complaint

1. Mrs X complained that the Council failed to provide her son, D, with the occupational therapy (OT) and speech and language therapy (SALT), that was set out in his education, health care plan (EHC plan). She said this caused D an injustice as he missed out on therapies that could have helped him progress.

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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 spoke with Mrs X.
5. I researched the relevant law and guidance and made enquiries with the Council.
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. 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

Relevant law and guidance

8. 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 EHC plan 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.
9. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
10. 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.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
12. 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). 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)
13. 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 EHC plan. 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 EHC plan 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.

14. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

15. Below is a summary of the key events in this case. It is not meant to be a full chronology of everything that happened.
16. Mrs X has a son, D, who has complex needs. He has not attended school since July 2021. In October 2021 the Council issued a final EHC plan for D. It set out that, among other things, that D should be provided with OT and SALT therapies.
17. D’s EHC plan named a special school, School F, and said it was the responsibility of School F to provide D with the content of the plan.
18. But D did not attend School F. His parents instead funded some outside school provision, which the Council says was arranged by School F for D.
19. The Council agreed an Education Other Than at School (EOTAS) package on 23 December 2021, but School F was still named as the school on D’s EHC plan.
20. In January 2022 Mrs X appealed the EHC plan. Her appeal was mostly focused on asking that an Education Other than At School package should be named in D’s EHC plan.
21. In March 2022, Mrs X complained formally that the Council had failed to ensure that the SALT and OT as set out in D’s plan, had been provided. She said she had been asking for this since September 2021.
22. Also in March 2022, at a Children in Need meeting, it was noted that D should receive SALT and OT as stated in his EHC plan.
23. Otherwise, the notes of that meeting indicated that D was doing well, that the educational provision he was accessing was meeting his needs and had a positive impact on his well-being and ability to learn.
24. On 26 April 2022, after receiving a holding email in response to her March complaint, Mrs X again communicated with the Council, reminding it that D had not received any SALT or OT for a year.
25. On 3 May 2022 the Council accepted that provision of SALT and OT was an urgent priority.
26. The Council says that a report confirmed on 9 May 2022 that D should have 15 hours of SALT a year and 16 hours of OT.
27. On 17 May 2022 the Council said that there had been some “…confusion about eligibility of pupils with EOTAS packages” for SALT and OT. However, it said it had been confirmed that these would be provided.
28. The Council says that once Mrs X informed the Council that D had not been provided with OT and SALT, this was raised with the commissioned provider. It said it was established quite early on that the Council’s commissioned provider did cover children with EOTAS packages, however the situation was confused because D was attending some alternative providers for education which were outside of the county.
29. Officers seemed unsure how the therapy provision should be provided, for instance, for how many hours. An internal note between officers said, on 25 May 2022, that because this was a case that had gone to the Tribunal and because it was a ‘complaint case’, the Council would spot purchase both OT and SALT for D.
30. In its stage one complaint response to Mrs X on 7 June 2022, the Council apologised. It said there had been ongoing issues over the year in providing OT and SALT. It said that as D had been attending provision that was out of the county, this led to a “…breakdown in communication and collaboration and meant the level of service provided to you was not as you should expert or deserve.”
31. It also said there had been resourcing issues.
32. It said it would now offer D 16 hours of OT and a further 15 hours of SALT.
33. Mrs X asked to take her complaint to stage two of the Council’s complaints process. The Council refused, saying this would not help inform when her son’s provision would start.
34. At a children in need meeting in July 2022 it was commented that D was still not receiving his SALT and OT support and that “…this impacts on his behaviour and communication.”
35. On 26 September 2022, OT and SALT were commissioned for D.
36. The Council accepts that there were delays in providing D with OT and SALT. However, it says that it was expected that D would return to School F in September 2021 where that provision was available. It does not consider D has been without provision for over two years.

Analysis

37. It is the Council’s responsibility to provide what is set out in D’s EHC plan. It says it viewed that School F could provide this and that this was available to D if he had attended School F.
38. However, it also says that it agreed that D could receive an EOTAS package from late December 2021 onwards. Mrs X says the Council was aware from September 2021 that D was not receiving OT and SALT. I consider that there may have been some early expectation that D might have attended School F but certainly, from at least January 2022, the Council was aware that D was not receiving any OT or SALT from School F. It says that it had agreed an EOTAS package from the end of December 2021. However, it did not step in to make sure that within this package, D would be receiving his SALT and OT therapies.
39. In its response to our enquiries the Council said that where children have EOTAS packages, the Council is required to make alternative arrangements via its spot purchase arrangements. However, this was not agreed until late May 2022 and it appears this was because it was a complaint case and because Mrs X had taken the Council to tribunal.
40. Further, even though in early May 2022, the Council said making this provision available to D was an ‘urgent priority’, there does not appear to have been any sense of urgency. It was not provided until late September 2022. There may have been resourcing issues and there may have been some confusion over how provision could be achieved as some of D’s alternative provision was out of county. But, the Council should have acted quicker to ensure that it complied with its accepted duty to D to provide the therapies set out in his EHC plan.
41. The evidence from the July 2022 children in need meeting is that D was impacted by the Council’s failure to ensure he received his therapies. I have made a recommendation to acknowledge the injustice caused.
42. I have also made a recommendation that the Council review its procedures to ensure that there is no future delay or confusion in making spot purchase provision for services when a child is receiving out of county provision.

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Agreed action

43. Within a month of the date of our final decision, the Council should:
1. Apologise to Mrs X and to D for the identified fault.
2. Make a payment of £300 to D to acknowledge the distress caused by not receiving his required therapies in line with his EHC plan.
3. Pay Mrs X the sum of £250 to acknowledge the time and trouble caused by her having to make continual requests to the Council to make provision available for D.
44. Within two months of the date of our final decision, the Council should conduct a review of its procedures around spot purchases of provision of services where a child is receiving out of county provision. It should demonstrate to the Ombudsman that it has considered ways of ensuring that delays such as happened above do not occur again.

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Final decision

45. I have found the Council at fault and made recommendations, which have been accepted by the Council, to acknowledge and remedy the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman