Summary: Mrs Y complained the Council failed to deliver all Miss Z’s special educational needs provision in her Education Health and Care Plan. We have found fault by the Council in failing to issue Miss Z’s plan within the statutory timescale and the delay and failure in delivering parts of her special educational needs provision from September 2022 to July 2023. This fault has caused injustice. The Council has agreed to remedy this by apologising to Mrs Y and Miss Z, making payments to recognise the impact of the missed provision on Miss Z, and to reflect Mrs Y’s distress, time and trouble and reporting to us on the position regarding the missing provision. It has also agreed to make a service improvement.

The complaint

1. Mrs Y has brought this complaint as her daughter, Miss Z’s representative. Mrs Y complains the Council failed to deliver:

• the provision in Miss Z’s Education, Health and Care (EHC) Plan from September 2022. There was a delay in issuing Miss Z’s final plan. Her therapy provision was not put in place until January 2023. Her Speech and Language Therapy (SALT) has still not been arranged; and
• the parts of Miss Z’s provision in the final EHC Plan issued in July 2021 which were not part of the appeal to the Special Educational Needs and Disability Tribunal.

2. Mrs Y says Miss Z is struggling at college without the provision of all the support in her EHC Plan. This is causing Miss Z distress and affecting her mental health and well-being. The Council’s failures and their impact on Miss Z have also caused Mrs Y distress. And she has had to spend time contacting the Council about its failure to make the provision, which has been difficult and time-consuming.
3. Mrs Y wants the Council to pay financial redress for Miss Z’s missed provision and the distress this has caused both Miss Z and her.

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
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 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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What I have and have not investigated

Complaint about the delivery of Miss Z’s SEN provision in the period from July 2021 to July 2022

8. 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.
9. 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 provision or 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 provision or school named in the plan. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
10. I have not investigated that part of Mrs Y’s complaint about a failure to deliver all of Miss Z’s SEN provision during the period from July 2021 (when the Council issued the final EHC plan giving Mrs Y the right to appeal) to July 2022, when the appeal proceedings concluded. This is because this issue is inextricably linked, in my view, to Ms Y’s appeal to the SEND Tribunal about Miss Z’s needs and the provision her plan.

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How I considered this complaint

11. I made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
12. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

13. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
14. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
15. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.

Amendments following a Tribunal order

16. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

What happened

17. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

18. Miss Z has had an EHC Plan for a number of years. There was a delay in completing the phase transfer review in 2021, before she moved from school to college. The final plan, which should have been completed in March, was not issued until July 2021. Miss Z’s SEN provision in section F of the plan was to be delivered by the college through the use of teaching strategies, and 1:1 academic and pastoral support. A further final plan was issued in November 2021 which included similar SEN provision.
19. Miss Z started at college in September 2021.
20. Mrs Y appealed to the SEND Tribunal against Miss Z’s SEN in section B and her provision in section F of the final plan.

The Tribunal order and new final EHC Plan

21. The SEND Tribunal allowed Mrs Y’s appeal and issued its order on 20 July 2022. This required the Council to issue Miss Z’s EHC Plan in the wording in the working document attached to the order.
22. The final EHC Plan was issued on 28 September 2022. In addition to SEN provision by the college, this included the provision of a laptop, a bespoke SALT programme and Post Traumatic Stress Disorder (PTSD) therapy.

Complaint about the delay in issuing the plan and arranging provision

23. Mrs Y complained to the Council about the delay. The plan should have been issued by 24 August (within five weeks of the Tribunal order).
24. The Council apologised for failing to issue the new plan within the required timescale. It said the delay was due to the high volume of requests and staff shortages. It was now arranging the provision in the plan.

The delivery of Miss Z’s SEN provision

25. The Council has told us:

• The college delivered all the strategy based provision, reasonable adjustments and 1:1 support from September 2022;
• the PTSD therapy was put in place from 28 November 2022; and
• It has been trying to find a provider to deliver Miss Z’s SALT but to date its efforts have been unsuccessful.

My analysis – was there fault by the Council causing injustice?

Delay in issuing the EHC Plan as required by the SEND Tribunal

26. The new final plan should have been issued by 24 August 2022. It wasn’t issued until 28 September 2022, a delay of over a month. This failure to meet the statutory timescale was fault.
27. This caused Mrs Y and Miss Z uncertainty and distress about whether the plan would be in place before Miss Z returned to college for the start of the new academic year. It wasn’t issued until after the new term had started causing them further worry.
28. The delay also meant Miss Z’s additional SEN provision (the laptop, PTSD therapy and SALT) wasn’t in place for the start of the new term.

Failure to deliver all the SEN provision

29. Had the EHC Plan been issued on time, all Miss Z’s SEN provision should have been in place from the start of the autumn term 2022.
30. There was a short delay in providing the laptop, but I consider this was resolved promptly and did not cause Miss Z any material injustice.
31. The Council has accepted there was a delay in arranging the PTSD therapy. This did not start until 28 November. This delay was fault.
32. It has explained the difficulties it has had in finding a provider to deliver Miss Z’s SALT. As yet it has still not been able to commission this. But it has not met its duty to deliver the SALT provision as set out in the EHC Plan and this is fault. Because of this Miss Z received no SALT for an entire academic year (2022/2023). It is still not in place now.
33. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £900 and £2,400 a term to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
34. I have considered the impact on Miss Z of the missed SEN support. The majority of her provision was delivered by the college. But the PTSD therapy and SALT are important parts of her SEN support. I have recommended a payment towards the lower end of the scale (taking into account PTSD therapy was put in place from 28 November 2022).

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Agreed action

35. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mrs Y and to Miss Z for its failure to issue the EHC Plan on time and provide all of Miss Z’s SEN provision from the start of the Autumn term 2022.
2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
3. pay Mrs Y £350 to reflect the distress caused by the delay in issuing the plan, the failure to deliver all Miss Z’s SEN provision, and her time and trouble bringing her complaint to us. This is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;
4. pay Miss Z £1,400 for each school term she did not receive PTSD therapy and SALT for the period from the start of the autumn term 2022 to 28 November 2022, and £1,000 for each school term she did not receive SALT from 28 November 2022 to the end of the summer term 2023. I have assessed this as a total of £3,425. This is to recognise the impact on Miss Z of the missed SEN provision; and
5. report back to us on the position with regard to the delivery of Miss Z’s SALT from September 2023. And what it will do to make up for the provision she has missed.
36. Within three months from the date of our final decision, the Council has agreed to:

• Share learning from this decision with staff to ensure they are aware of the importance of issuing an EHC Plan within the required timescale following a SEND Tribunal order, and arranging the provision to start from the date the plan is issued.

37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation of this complaint. I have found fault by the Council causing injustice. The Council has agreed to take the above actions as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman