Summary: There was a failure to secure special educational provision in an EHC plan from December 2020. This was fault and led to a young person missing out on therapy at a vital stage of their education. The Council will provide a payment to acknowledge the impact of the fault, secure provision and make service improvements. The Complaint is upheld.

The complaint

1. Ms X complains the Council failed to ensure provision in an Education, Health and Care (EHC) plan was secured in breach of s.42 Children and Families Act 2014.
2. Ms X says as a result her child did not receive the following special educational provision they were entitled to, which negatively impacted on their learning:
• Speech therapy from December 2020
• Child and Adolescent Mental Health Services (CAMHS).
3. Ms X says she only found out the provision was not in place after she saw annual review paperwork from the school in 2022.
4. Ms X also complained about delay in the conduct of the 2022 annual review.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. Before considering a complaint, the Ombudsman should be satisfied the relevant body has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.
10. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is another body better placed to consider this complaint.(Local Government Act 1974, section 24A(6), as amended)
11. 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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What I have and have not investigated

12. I have not investigated lack of support from CAMHS for the reasons set out below.
13. I have investigated the complaint about speech therapy and the annual review.

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How I considered this complaint

14. I have considered information provided by Ms X and the Council including:
• Complaint documents,
• A previous Ombudsman investigation about a failure to secure occupational therapy provision,
• Final EHC plan.
15. I have spoken to Ms X by telephone.
16. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’).
17. 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.
18. Ms X and the organisation 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

19. 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.
20. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Following a review meeting held by a school, the Headteacher must submit a report to the Council within two weeks setting out recommendations on any amendments to be made to the EHC plan, the views of those attending the meeting and any advice gathered about the young person for the review.
21. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
22. 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)
23. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
24. 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)
25. 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.
26. 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)
27. 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.

Key events

28. The Council issued a final EHC plan for Ms X’s child in December 2020 after a Tribunal decision.
29. This included the following provision:
• Speech therapy
• Occupational therapy (OT)
• CAMHS support.
30. An annual review was held in 2021 following which the Council updated the EHC plan, but this did not substantially alter the support that Ms X’s child was to receive.
31. We investigated the lack of occupational therapy (OT) in a previous investigation and upheld the Council had been at fault in failing to secure OT for Ms X’s child between December 2020 and Summer 2022 (the date of our decision). We asked the Council to provide an apology and payment of £800 to acknowledge the impact of the loss of OT and to arrange the therapy.
32. Ms X says she was not aware when she previously came to the Ombudsman that other external support in the EHC plan was not in place. Ms X says she found this out only after the annual review meeting in Spring 2022 when she saw paperwork the School submitted to the Council which referred to support not being in place.
33. Ms X complained to the Council. The Council confirmed speech therapy had never been put in place since the EHC plan was issued in December 2020. The provision should have included intervention from a team led by a senior speech and language therapist, an hour of direct therapy per fortnight, and a weekly social skills group.
34. The CAMHS support in the EHC plan was in Section G (Health) and not Section F (Education). The Council therefore said it was the responsibility of the Health Commissioning body to provide this. Initially the Council was unsure why the support was not in place, so it made enquiries of CAMHS. CAMHS said Ms X’s child had been discharged from the service in February 2020 and the provision should have been removed from the 2020 and 2021 final EHC plans.
35. The wording in the EHC plan issued following the Tribunal order in December 2020 was that Ms X’s child should receive advice, monitoring and input as deemed appropriate from…CAMHS…CAMHS will provide consultation to school on an on-going basis.
36. Following the annual review in Spring 2022 the School delayed submitting the paperwork to the Council by a period of two months. The Council had chased the paperwork and when it was received it issued a decision to amend the plan within days. It issued a final amended EHC plan four months after the review meeting but within five weeks of it receiving the annual review report. Ms X complained about the delay in completing the review. The Council acknowledged the delay was fault, apologised and said it would make service improvements.

Analysis

Delay in completing annual review

37. There was some delay in completing the review, but this was mainly delay by the School, not the Council. I consider the apology and service improvements made by the Council are a satisfactory resolution to this aspect of the complaint.

CAMHS support

38. The Council is correct to say that Health provision in Section G is not the responsibility of the Council to secure. The provision is also worded in a way which seems to leave it open to CAMHS how much support, if any, it judged was required.
39. While the Ombudsman does have the ability to investigate complaints that cover health and education as part of our joint working agreement with the Health Service Ombudsman, it is premature for the Ombudsman to consider lack of CAMHS support because Ms X has not raised this with the Commissioning body concerned. CAMHS would need the opportunity to respond to any complaint. Ms X has made an identical complaint to CAMHS previously, so I consider it is reasonable to expect Ms X to raise this with CAMHS. If Ms X does choose to raise this with CAMHS and is dissatisfied with the outcome she can ask the Health Service Ombudsman to consider her complaint.
40. I consider that delaying my investigation to allow Ms X to complain to CAMHS would not be in her child’s best interests because it would delay resolving the complaint about speech therapy.

Amendment of EHC plan to remove provision

41. I understand the Council has amended the wording in the EHC plan when it reissued the EHC plan in 2022 removing provision from Sections F and G. Ms X would have had a right of appeal against this decision to the SEND Tribunal which we would have expected her to use. Where an appeal is registered against Section F, parents also have the right to ask the Tribunal to extend the appeal to cover health and social care needs and provision in Sections G and H.

Failure to secure speech therapy

42. The Council has accepted Ms X’s child has not received speech therapy since December 2020. The Council apologised and said it would make a referral, which it did in November 2022, but Ms X says no therapy has started yet.
43. Ms X told me her child moved to alternative provision in Autumn 2022, however this does not alter the Council’s duty to secure the special educational provision in the EHC plan as best it can in a different setting.
44. Ms X told me she considers her child has missed out on intervention at a crucial stage. Her child is unlikely to gain any qualifications in Year 11 and is at risk of ending up not in education or training post-16 despite having an EHC plan. Post-16 planning depends on professionals being involved with her child who can give advice about post-16 pathways, but the professionals who are supposed to be working with her child have yet to start.

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Agreed action

Within four weeks of my final decision

45. The Council will pay Ms X’s child £900 to acknowledge the loss of speech therapy input from December 2020 to date, and the impact this had on learning.
46. The Council will pay Ms X £100 for her time and trouble in having to bring a second complaint to the Ombudsman.
47. The Council will provide evidence to the Ombudsman that all therapy provision in Section F of the EHC plan has now been secured. If it has not, the Council should explain why and consider offering education direct payments so Ms X can source provision privately if she wishes.

Within two months of my final decision

48. The Council will ensure it has a robust process to check that special educational provision in an EHC plan is put in place when a new or amended EHC plan is issued.
49. The Council will provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was a failure to secure special educational provision in an EHC plan from December 2020. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman