Summary: Miss X complains the Council failed to provide her child with the educational provision in his Education, Health and Care (EHC) plan. The Council acknowledges it has failed to secure all of the provision. This is fault and it caused injustice to Y. The Council has agreed to remedy the injustice caused by making a payment to Miss X for the impact the missed provision has caused and also for the distress and uncertainty. The Council has also agreed to prioritise action to ensure the missing provision is secured.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council has failed to provide her son, Y, with educational provision as per his Education, Health and Care (EHC) plan and a Tribunal order.

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What I have and have not investigated

2. Miss X also complained about the Council failing to deliver the social care provision in Y’s EHC plan. I have not investigated this aspect of Miss X’s complaint because the Council is investigating it under the statutory children’s complaint procedure.

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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. 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.
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 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

7. I considered Miss X’s complaint and the information she provided.
8. I considered the information I received from the Council in response to my enquiries.
9. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Miss X and the Council before making this final decision.

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What I found

Law and Guidance

Education, Health and Care (EHC) plans

10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. The procedure for reviewing and amending EHC plans is set out in legislation and the Code. The plan should be reviewed by the council and the school with the parents and/or the child at least once a year. Sometimes an early review may be requested if there is a need to amend a plan more urgently. For example, if a school placement has broken down.
12. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. The Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
14. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

16. This is a summary of key events that are relevant to my investigation. It is not a comprehensive list of every event that happened.
17. Miss X’s child, Y, was diagnosed with Autistic Spectrum Condition (ASC) in 2016. Y also experiences severe anxiety. His first EHC Plan was finalised in July 2019 when he was 12 years old. Y’s EHC plan was updated and finalised on 31 August 2021 after an emergency annual review.
18. Miss X appealed the contents of the EHC plan to the SEND Tribunal in September 2021. The SEND Tribunal heard Miss X’s appeal in March 2022. We have investigated Miss X’s complaint about a lack of alternative provision for Y in the period prior to the tribunal hearing and provided an appropriate remedy. This complaint is about matters following the conclusion of the SEND tribunal.
19. The SEND Tribunal issued its decision in April 2022. It ordered the Council to amend Y’s plan. The Council issued Y’s amended plan within four weeks of the tribunal’s order. The amended plan outlined provision Y was entitled to which included:
• Physical Education (PE) provision;
• Therapeutic tuition/mentoring sessions from Company F;
• Clinical psychology sessions;
• Occupational Therapy (OT) sessions
• Speech and Language Therapy (SaLT) sessions
20. Y was also in receipt of tuition for academic subjects such as Maths, English and History.
21. In November 2022, Miss X complained to the Council about its failure to provide Y with some of the provision in his EHC plan. The Council ‘partly upheld’ her complaint. It acknowledged there were delays in implementing some of the provision and it apologised. It advised Miss X of the difficulties it had encountered in sourcing OTs and SaLTs due to a national shortage after the pandemic. The Council also said that whilst one-to-one support with a clinical psychologist is written into Y’s EHC plan, it is only for 15 minutes per week and this is ‘not practically commissionable’. As an alternative, it decided Company F would be commissioned to deliver this provision.
22. In December, an annual review of Y’s EHC plan was held and the Council decided to amend the plan. In January 2023, an amended EHC plan was issued. Miss X escalated her complaint to stage 2 of the Council’s complaint process. She remained unhappy with the delays in securing the provision and said the Council was wrong in stating that the support from a clinical psychologist was for 15 mins per week when Y’s EHC plan states it was for an hour per week.
23. The Council considered Miss X’s complaint at stage 2 of its complaint process. It said it was unclear what her wishes were in terms of a start date for the delivery of the P.E. provision but on receipt of her complaint it has began searching for a suitable provider to deliver the provision. It also offered Miss X direct payments to arrange the provision instead.
24. The Council apologised for the delay in the delivery of the provision from Company F. It did not provide a reason for the delay but offered to extend the provision beyond the time stated in the plan if assessed as necessary so Y would not be disadvantaged by the delay.
25. The Council acknowledged the clinical psychology provision equates to one hour per week but it remained of the view that the outcomes listed in Y’s EHC plan could be achieved through Company F.
26. The Council reiterated there was a shortage of OTs and said it could arrange direct payments to Miss X if she wished to commission the provision herself.
27. The Council upheld all of Miss X’s complaints at stage 2 and hoped “the service’s endeavours will ensure this is remedied as soon as possible” and where required, provision would be extended over time for Y. The Council asked Miss X to let it know how she would like the provision to be commissioned. In response to my enquiries, the Council said it had not received a response to this request from Miss X.

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Analysis

28. As per Y’s EHC plans dated May 2022 and January 2023, Y has not received 30 minutes per week of SaLT, six sessions of OT, weekly key life skills sessions, weekly therapeutic/mentoring sessions and one-to-one support with a clinical psychologist. The Council is at fault for these failures.
29. There is also evidence of the Council failing to pay invoices on time to secure provision and this resulted in providers suspending the delivery of provision to Y.
30. The Council acknowledges it has failed to provide the provision in Y’s EHC plan and it has apologised for the delay in implementing some of the provision. It says it was unable to source an OT due to a national shortage across the health service and private sector. Although there is evidence of the Council attempting to source the missing provision for Y, and I appreciate the Council is struggling to find therapists, but the law is clear, councils are responsible for making sure that arrangements specified in EHC plans are put in place. Failure to do so is fault. This means that Y has not received the agreed provision and other than the PE provision, this continues to be the case.
31. To remedy the injustice to Y and Miss X, I have taken into consideration Y’s age, his SEN and the educational provision that was delivered. I have also taken into consideration the significance of the period where Y did not receive the provision in his EHC plan. This is relevant because Y was preparing for his GCSE exams therefore the impact of the loss of provision is significant.

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Agreed action

32. To remedy the injustice, the Council has agreed that within four weeks of this decision, it will pay Miss X:
• £3300 (this equates to £300 for every month from May 2022, excluding holidays) for the impact of the loss of provision. I recommend this payment is used for the benefit of Y’s education and wellbeing.
• £250 in recognition of the distress, frustration and uncertainty she has experienced as a result of the identified faults.
33. The Council has also agreed that within six weeks of this decision, it will review the outstanding provision in section F of Y’s EHC plan and prioritise action to ensure the missing provision is in place.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. The Council is at fault for failing to secure the provision in Y’s EHC plan. It has agreed to my recommendations to remedy the injustice caused to Miss X and to Y. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman