Summary: Mrs X complains the Council failed to provide the agreed EHCP support for her child, and failed to consider her complaint under the complaints process. The Ombudsman intends to find fault with the Council for failing to ensure the EHPC was being delivered, and for failing to consider Mrs X’s complaint at stage two. The Ombudsman recommends a financial remedy.

The complaint

1. Mrs X complains the Council failed to provide the agreed provision in her son’s EHCP.
2. Mrs X complains this left her child without the support they needed.
3. Mrs X complains the Council failed to recognise it was responsible for the EHCP provision.
4. Mrs X also complains the Council failed to consider her complaint at stage 2, and failed to consider the impact of its fault on her and her child.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered Mrs X’s complaint and the information she provided. I also considered information from the Council.
9. I considered comments from Mrs X and the Council on a draft of my decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Law and guidance

SEND Tribunal

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

Education, Health and Care Plans (EHC Plans)

12. A young person with special educational needs may have an Education, Health and Care (EHC Plan). This sets out their needs and what arrangements should be made to meet them.
13. Councils are the lead agency for carrying out assessments for EHC Plans and have the statutory duty to ensure special educational provision in an EHC Plan is made available.
14. The EHC plan is set out in sections which include:

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of school. 

15. 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.
16. 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)
17. 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.

What happened

18. Mrs X’s child, Child Y, has an Education, Health and Care Plan. In January 2021, Child Y started at a new school that was arranged by the Council.
19. When Child Y started at the new school, the school were provided with the documents which set out the provision that Child Y should be receiving. The Council issued the EHCP in February 2021 which confirmed Child Y should have Occupational Therapy (OT) sessions.
20. In March 2021, Mrs X contacted Child Y’s school to establish an update with the OT sessions.
21. The School told Mrs X that Child Y had not started their OT sessions because the OT was on maternity leave. The school offered for an assistant OT to carry out the sessions, however Mrs X refused as the provision had set out that the OT needs to be fully qualified and registered.
22. Mrs X raised concerns with the school that it was known when the place was agreed in January 2021 there would be no OT until September 2021. Mrs X advised the school that this was discussed with the Council when the placement was agreed.
23. Child Y started to receive some OT sessions from April 2021, however at the annual review in January 2022 was told that weekly sessions had not started until September 2021. Mrs X asked the school how many sessions Child Y had received, and was told that from January 2021 to July 2021, Child Y received less than half the sessions he was supposed to receive.
24. Mrs X complained to the Council in January 2022 that Child Y had not been receiving the provision agreed in their EHCP.
25. The Council responded to Mrs X in February 2022. In the response, the Council accepted that Child Y had not been receiving the agreed provision. However it believed the issues Mrs X raised were issues related to Child Y’s school. The Council proposed a meeting between its Special Educational Needs services and Mrs X to try and resolve the issues.
26. Mrs X tried to escalate her complaint to stage two in February 2022, as she felt the Council had not recognised its duty to provide the EHCP provision.
27. The Council at first said it needed more information to consider Mrs X’s complaint at stage 2. Mrs X provided further information to the Council, and continued to chase for a response, however she did not receive one.
28. Mrs X bought her complaint to the Ombudsman as she felt the Council did not consider the impact of its delay on her and Child Y.
29. The Ombudsman agreed to investigate Mrs X’s complaint despite it not being investigated at stage two as the Council has had enough time to consider Mrs X’s complaint at stage 2 and provide a response.

Analysis

30. It is the Councils duty to ensure the provision in the EHCP is being delivered. Where the Council contracts this responsibility out to third parties, it remains responsible for the delivery.
31. Child Y started at their new school in January 2021. This placement was arranged by the Council and it was the Councils responsibility to ensure the placement arranged would be suitable for Child Y and able to deliver the EHCP provision.
32. The communication between the Council, Mrs X and the School suggests the Council was aware there would be little to no OT provision in school when Child Y started because the OT was on maternity leave. The Council was aware Child Y would not be receiving the provision and should have arranged for it to be delivered through an alternative method.
33. The Council has already recognised that Child Y was without the agreed provision but said the issues were to do with the school. The Council is responsible for the delivery of the EHCP, and therefore, when it became aware that Child Y was not receiving the agreed provision, it should have acted to ensure this was addressed. Failure to do so was fault by the Council.
34. Child Y received less than half of the agreed provision between January 2021 and July 2021.
35. The annual review in January 2022 noted that Child Y had continued to not receive all their provision. I find fault with the Council for failing to ensure that Child Y was to receive the OT provision between January 2021 and January 2022.
36. This is fault by the Council causing distress to Mrs X and Child Y and meant that Child Y missed the full OT provision they were entitled to for 11 months.
37. Additionally, Child Y was in new to the placement and will soon be transitioning to post-16 education. The support provided in the time before transitioning is key for the post-16 journey for a young person. Child Y’s lack of access to this support has been impacted by the Council’s fault.

Communication and complaint handling

38. Mrs X spent significant time and effort chasing the Council about the results from her complaint. Mrs X sought a stage two response in March 2022. The Council asked Mrs X to provide further information to consider her request. It did not clearly communicate with Mrs X that it would not be considering her complaint at stage two.
39. When the complaint initially came to the Ombudsman, the Council agreed to complete a stage two investigation, however as so much time had passed, the Ombudsman agreed to investigate the complaint as the Council had the opportunity to resolve the issues at stage two and had not done so.
40. Mrs X spent a considerable amount of time chasing responses from the Council and only received a stage two response once the Ombudsman investigation commenced. This has caused Mrs X further distress as well as more time and trouble.
41. The Council also failed to suitably consider the impact of its actions on Child Y or show consideration to the Ombudsman’s guidance on remedies.

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Agreed action

42. Within 4 weeks of my final decision, the Council has agreed to

• Write to Mrs X and Child Y and apologise for the fault identified.
• Pay Child Y £2200. I have calculated this at £200 for every month Child Y has been without full provision from between January 2021 to January 2022.
• Pay Mrs X £250 in recognition of the time and trouble taken to continue to follow up with the Council and bring her complaint to the Ombudsman.

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Final decision

43. I have now completed my investigation. I find fault with the Council for failing to ensure Child Y received the provision in their EHCP.

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Investigator's decision on behalf of the Ombudsman