Summary: Ms D complained the Council has failed to provide the provision detailed in her son’s Education, Health and Care Plan. We find the Council was at fault for failing to secure the provision in Ms D’s son’s Education, Health and Care Plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms D complained the Council has failed to provide the provision detailed in her son’s (F) Education, Health and Care (EHC) Plan. She says it has not provided F with occupational therapy (OT), speech and language therapy (SALT), modified cognitive behavioural therapy (CBT) and a reading intervention programme.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

6. I have exercised discretion to investigate Ms D’s complaint about the failure to provide F with OT, SALT and modified CBT from September 2021 onwards. I have not investigated matters before September 2021 as they are late, and I am satisfied Ms D had a reasonable opportunity to refer her earlier concerns to us sooner.
7. I have not investigated Ms D’s complaint about the failure to provide F with a reading intervention programme. This matter has not been through the Council’s complaints procedure and is therefore premature. The law that governs our work says the organisation being complained about must have a reasonable opportunity to investigate the complaint.

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How I considered this complaint

8. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
9. Ms D 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

Special educational needs

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
11. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

What happened

13. This chronology includes an overview of key events in this case and does not detail everything that happened.
14. F has special educational needs and an EHC Plan. The Council issued an EHC Plan for F in July 2021. This said F required access to:

• A weekly direct 1:1 session with a speech and language therapist for a minimum of 45 minutes.
• A daily communication programme devised by a speech and language therapist.
• Weekly counselling following a modified CBT approach from a qualified counsellor.
• A block of OT treatment sessions lasting 45 minutes (once or twice a week) from an occupational therapist.
• An OT programme written by an occupational therapist to be delivered daily by a learning support assistant.
• Directing teaching sessions using the Zone of Regulation from an occupational therapist or speech and language therapist (sessions once or twice per week until the material is complete).
• A sensory diet written by a qualified occupational therapist.

15. The school F was attending held an annual review of his EHC Plan in November 2021. Ms D said some of F’s provision was not in place. The school said some of the provision was difficult to implement and F was not having OT or modified CBT, but he was having weekly indirect SALT sessions.
16. The Council sent enquiries to providers to source OT for F in December 2021.
17. F started receiving direct SALT sessions from January 2022 onwards.
18. The Council sent further requests to OT providers in February, March, and August. The providers responded and said they did not have availability to take on F’s case.
19. F started attending college in September 2022. It was a different college to what the Council named in his EHC Plan. Ms D made the Council aware of this.
20. Ms D complained to the Council in November 2022. She said it failed to provide F with OT from September 2019 onwards and modified CBT from September 2021 onwards.
21. The Council responded to Ms D’s complaint in February 2023. It said it was taking a long time to source occupational therapists. It said it wanted to offer her a personal budget so she could choose her own occupational therapist.
22. The college F attended held an annual review of his EHC plan in April. Ms D said F was still without OT and modified CBT. She also said she did not want a personal budget as it was the Council’s responsibility to source the provision.
23. Ms D’s solicitor contacted the Council on her behalf and raised the issues about the provision in F’s EHC Plan. The Council responded and said it had sourced SALT for F, but not OT or modified CBT.
24. Ms D referred her complaint to stage two of the Council’s complaints procedure. She said it failed to act in line with the Children and Families Act.
25. The Council contacted some providers to source modified CBT for F from May 2023 onwards.
26. Ms D initially asked the Council to source a male counsellor to provide modified CBT for F. She later agreed for the Council to source female counsellors.
27. The Council found a psychologist that agreed to complete an assessment for the modified CBT in September. However, the psychologist later cancelled the assessment.
28. The Council issued its final response to Ms D’s complaint in October 2023. It said F did not receive the OT in his EHC Plan. It offered £7,200 (£200 per school month) for the loss of all F’s special educational provision from September 2019 to January 2023.
29. F started receiving some OT in November 2023.

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Analysis

30. The Council has a legal duty to make sure a child or young person receives the special educational provision set out in section F of an EHC Plan. The Council did not provide F with any OT until November 2023. F is now receiving OT, but Ms D says it is not the amount specified in his EHC Plan. This is a new matter which is outside the scope of my investigation. Ms D will need to make a new complaint to the Council if she is unhappy with the amount of OT F is receiving.
31. F did not receive any direct SALT as per his EHC Plan from September 2021 to January 2022. He then received weekly 1:1 SALT sessions from January to July 2022. F moved to a new placement in September 2022, and Ms D made the Council aware of this on 12 September. However, his weekly SALT did not start until November 2022.
32. F has not received any modified CBT since September 2021. The Council made no attempts to source this provision until May 2023, even though Ms D raised it as a concern in the annual review in November 2021. I understand the provision is difficult to commission, and Ms D initially requested a male counsellor which limited the options available. I also understand Ms D was also unhappy with a therapist the Council proposed. However, the Council still has a legal and non-delegable duty to secure the provision and it has failed to do so. If the Council had acted without fault, this provision would have been in place in September 2021. When the Council responded to our enquiries in April 2024, it said it had sourced a provider that was willing to arrange an assessment. I would expect the Council to progress this assessment to ensure F receives the provision.
33. The Council’s fault from paragraphs 30 to 32 of this statement have caused F a significant injustice. He has been without the provision he is legally entitled to. The provision is intensive and because of the length of time the matter has gone on for, it will not be possible for F to catch up. The Council paid Ms D £7,200 to reflect the loss of F’s special educational provision from September 2019 to January 2023. My investigation covers a different timeframe (September 2021 to December 2023). I recommend the Council pays a further £400 on top of the £7,200 it has already paid to reflect the loss of provision. This is line with our guidance on remedies.
34. The Council’s faults have also caused Ms D an injustice. She has been frustrated that F has not received the provision he is legally entitled to, and she has been inconvenienced by having to repeatedly raise the issues with the Council. The Council needs to make a payment to Ms D to reflect her injustice.

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Agreed action

35. By 23 September 2024 the Council has agreed to:

• Apologise to Ms D and F for the injustice caused by the faults identified in this statement.
• Pay Ms D £250 for her frustration and inconvenience.
• Pay Ms D a further £400 on top of the £7,200 it has already paid to reflect F’s loss of special educational provision from September 2021 to December 2023. We would suggest she uses this payment for F’s educational benefit.
• Take proactive steps to progress the assessment for F’s modified CBT.

36. By 21 October 2024 the Council will ensure it has robust processes in place to check special educational provision in an EHC Plan is put in place without undue delay.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council, which caused Ms D and F an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman