Solihull Metropolitan Borough Council (23 003 331)
The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to secure the special educational needs provision in her child D’s Education, Health, and Care plan. The Council was at fault because it failed to ensure the plan was in place, which caused D to miss special educational needs provision. The Council’s fault also caused avoidable distress for D and their parents, and avoidable time and trouble for Mrs X. The Council agreed to apologise, ensure the provision in D’s plan is in place without delay, and pay a financial remedy. It will also share a copy of our decision with, and issue reminders to, relevant staff.
The complaint
- Mrs X complains the Council failed to secure the Special Educational Needs (SEN) provision in her son D’s July 2022 Education, Health, and Care (EHC) plan. She says because of this D had a mental health crisis, it affected D’s educational and social development, and caused the whole family distress.
- Mrs X wants the Council to ensure the SEN provision in D’s EHC plan is delivered, paying for private providers to deliver this if needed.
The Ombudsman’s role and powers
- 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)
- We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when a school is acting on behalf of a council to secure educational provision as set out in Section F of a young person’s Education, Health, and Care Plan.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
- 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)
How I considered this complaint
- I considered:
- information provided by Mrs X and notes from my colleague who discussed the complaint with her;
- documentation and comments from the Council;
- relevant law and guidance; and
- the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
- Mrs X and the Council had opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
What should have happened
Education Health and Care (EHC) plans
- A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
- 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, reviews, and re-assessments, and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons.
Duty to secure EHC plan provision
- 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)
What happened
- Mrs X’s son, D, is of secondary school age. He attends a special school and has an Education, Health, and Care (EHC) plan.
- The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. Mrs X appealed to the Tribunal about the content of D’s EHC plan in the 2021/2022 school year. The Tribunal ordered changes to D’s plan. The Council issued a final EHC plan in line with the Tribunal’s order in July 2022. This named the special school D was already attending but included added SEN provision.
- In September 2022, shortly after D began year 8, Mrs X contacted the Council with concerns his school was not delivering the SEN provision set out in his new EHC plan. Mrs X continued to chase these issues throughout the school year, and the Council had contact with the school and Mrs X about this.
- In January 2023, Mrs X complained to the Council because the issues remained unresolved. The Council responded at Stage 1 of its complaints procedure nine weeks later. It apologised for delays in securing some SEN provision in D’s EHC plan. It said:
- it had provided the school with all the funding needed to deliver D’s EHC plan. All provision in the plan was in place, apart from 1:1 supervision at lunchtimes, and weekly swimming lessons, which were delayed due to difficulties recruiting suitable staff, but would begin soon; and
- it accepted multi-disciplinary (MDT) review meetings had not taken place every half term as set out in the plan. The Council said it would remind the school of the importance of holding a meeting every half term, even if some professionals invited cannot attend. It said the school would try to arrange an MDT meeting before the next half term.
- Mrs X escalated her complaint to Stage 2 of the Council’s complaints procedure. She said several parts of D’s EHC plan were not in place, including Speech and Language Therapy (SaLT) and Occupational Therapy (OT).
- The Council responded at Stage 2 ten weeks later. It said:
- all provision in the plan was in place, apart from 1:1 supervision at lunchtimes, which was still delayed due to staffing difficulties. Meanwhile the school was using existing staff to ensure D was supervised at all times; and
- swimming lessons were now in place and available to D, but he had chosen not to engage with these because of when they were timetabled.
- Two weeks later, In June 2023, Mrs X came to the Ombudsman. Shortly after this the Council arranged a meeting with the school and Mrs X. At the meeting it was discussed that several parts of D’s EHC plan were still not in place, including SaLT and OT. The Council says this was the first time D’s school had confirmed SaLT and OT had not been in place. The Council agreed to provide extra funding so the school could commission private providers to deliver this.
My findings
Delivery of EHC plan
- The July 2022 (post-Tribunal) EHC plan set out the SEN provision D should receive. I have summarised the key provision D should have received according to the plan in the table below. I have also explained my findings about what D did receive.
| What D should have received | What D received |
| |
| 1:1 support throughout the day, including additional monitoring during unstructured times and breaks, due to risk of self-harm. 2:1 support in situations where D is unable to cope, as needed. Specific software to support use of symbols for communication, both in school and at home. Various training for staff working with him, including training on selective mutism, autism, and trauma. | 1:1 support was delivered, including at unstructured times such as lunchtimes. Although the school did not recruit a dedicated member of staff for lunchtime support until the end of the year, D was supervised by other staff before this. D had access to the software in school but did not use this as he did not need it. The software was not available to him at home, which was fault. Some, but not all the staff training specified in the plan was completed. |
| Speech and Language Therapy (SaLT) | |
| Programme to address selective mutism, written by SaLT therapist with relevant experience, and carried out by school staff. 90-minute review every half-term with SaLT therapist, parents, and school staff, including review of the selective mutism programme. 4 hours allocated to SaLT therapist across the year to carry out re-assessment and reports. | The SaLT set out in the plan was not delivered. At the end of the year, the Council agreed to provide extra funding to commission a private SaLT provider but this was not in place before the end of the school year. The lack of SaLT also affected the delivery of in-class communication strategies set out in the plan. |
| Social, Emotional, and Mental Health (SEMH) | |
| Two 35-minute sessions per week of an evidence-based social skills programme, delivered by suitably trained staff. Weekly intervention with a mentor for self-esteem, confidence, and social skills. Animal therapy for anxiety management. The plan said D would benefit from spending time with animals regularly, which could include walking the school dog as part of his daily routine. | A social skills programme was not delivered. Weekly intervention with a mentor was not delivered. Mrs X said the family arranged and paid for equine therapy at the start of the year. In March 2023, the school agreed to take over the funding for this. I consider this went over and above the requirements of the plan, which only said D “would benefit” from animal therapy and did not quantify this further. |
| Physical activity, Occupational Therapy (OT) and sensory strategies | |
| Specific Physical Education (PE) lessons programme, including sensory circuit sessions. Individualised activity programme with an appropriately trained adult in a specific physical activity that is important to D, for example, riding a bike or a horse. The professional will monitor progress after 12 weeks and review the programme. Individual weekly swimming lessons in a quiet and calm pool, with an instructor who understands D’s specific needs. Occupational therapist (OT) review every term, to consider and adjust the PE lessons programme, and what support should be provided in-class and at lunchtimes. | PE was not delivered as set out in the plan. A 12-week physical activity programme was not delivered. The Council said this was delivered and cited the equine therapy referred to above under the SEMH section of this table. However, I consider this provided animal therapy rather than physical activity in the form of horse riding. Weekly swimming lessons were not made available to D until March 2023. D then did not receive this for the rest of the year because they did not want to engage with it when timetabled. The school offered the family alternatives, but they chose to postpone this until the following school year instead. I consider it was fault that D did not receive this before March 2023, but it was available to them after this. The OT set out in the plan was not delivered. At the end of the year, the Council agreed to provide extra funding to commission a private OT provider but this was not in place before the end of the school year. The lack of OT also affected the delivery of in-class strategies set out in the plan. |
| Multi-Disciplinary Team (MDT) reviews | |
| MDT review every half-term, to address neurodevelopmental needs and mental health issues. Attended by school, parents, and mental health and other professionals. | MDT support was not delivered as set out in the plan. |
| Incident reporting | |
| Staff to record any incident that might have led to injury, even where D does not say he was hurt. Parents to be informed of incidents so they can monitor at home. Incident records to be reviewed by school staff every half-term to establish patterns that should be addressed. | Incident reporting was in place as set out in the plan. |
- D did not receive most of the provision in their EHC plan.
- The Ombudsman recognises 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. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum councils should 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.
- We would have expected the Council to check the educational provision in D’s post-Tribunal EHC plan was in place, in good time. In this case, the Council was made aware there were issues with delivery of the plan straight away, at the start of the school year.
- I am not satisfied the Council made reasonable efforts to resolve the issues reported by Mrs X with delivery of the plan. On a phone call with Mrs X in October 2022, the Council told her concerns about D’s SEN provision could be raised in the next annual review, in eight months. This was wrong; the Council had a duty to secure the provision in the plan and should have taken steps to resolve this straight away. Instead, Mrs X had to continue to chase this up throughout the school year. Although the Council had some contact with the school about this, it did not resolve the issues in good time, and some issues remained unresolved throughout the year. This was fault which meant D missed SEN provision they were entitled to. We usually expect EHC plan provision to be in place within no more than half a term. Therefore, the Council should remedy the injustice caused from November 2022 to July 2023.
Complaint handling
- The Council’s complaints procedure says it will respond to complaints at Stage 1 within 30 working days. Where someone requests a Stage 2 review, it says it will respond within 10 working days, or 20 working days for more complex cases.
- It took the Council 41 working days to issue a Stage 1 complaint response, and 45 working days to issue a Stage 2 response. These delays were fault.
- In responding to the complaint, the Council repeatedly told Mrs X most of the provision in D’s EHC plan was in place, including SaLT and OT. This information was wrong. The Council’s failure to properly investigate the complaint and ensure it provided correct information, was fault.
- The Council part-upheld Mrs X’s complaint and accepted D had not received all the provision set out in the plan. However, it did not offer any remedy to put things right and recognise the provision D had missed. This was fault.
- The Council’s failure to handle Mrs X’s complaint properly caused her avoidable distress, and time and trouble in bringing her complaint to the Ombudsman. The Council should remedy the injustice caused.
Agreed action
- As set out in our Guidance on Remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN provision to support their education, such as SaLT or OT, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
- In deciding an appropriate financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
- During this period, D was in year 8 of secondary school. As set out in our Guidance on Remedies, we do not consider this to be one of the most significant periods in a child’s school career, as we would say for the first year of secondary school.
- D did not receive most of the SEN provision set out in his EHC plan. This included SaLT, OT, and provision to support his social, emotional, and mental health. The lack of SaLT and OT input had a significant impact on his ability to communicate and to access his education.
- Based on this, I consider a remedy of £800 for each term of missed SEN provision to be appropriate.
- Within one month of our final decision the Council will:
- apologise for the faults identified and the impact of those faults on the family. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology;
- ensure all SEN provision in D’s EHC plan is fully in place, without delay;
- pay Mrs X a total of £2,800 comprising of:
- £2,000 to recognise the 2.5 terms of SEN support D missed from November 2022 to July 2023. This is intended for D’s future educational benefit;
- £400 to recognise the avoidable distress caused to D’s parents by the Council’s failings;
- £200 to recognise the avoidable distress to D; and
- £200 to recognise the avoidable time and trouble caused to Mrs X by fault in how the Council handled the complaint.
- Within three months of our final decision the Council will:
- share a copy of our decision with relevant staff across its Special Educational Needs and Disability service. It will remind staff that:
- the Council has a statutory duty to secure the SEN provision in a child’s EHC plan, which it cannot delegate; and
- where a family raises concerns that an EHC plan is not being delivered, it should properly investigate and assure itself the provision is in place without delay.
- share a copy of our decision with staff involved in the complaint response in this case. It will remind staff:
- about the timescales set out in its complaints procedure; and
- that when the Council accepts fault, it should consider how it can put things right for the complainant, in line with the Ombudsman’s guide, ‘Effective complaint handling for local authorities’.
- The Council will provide us with evidence it has complied with the above actions.
Final decision
- I have completed my investigation. There was fault by the Council which caused D to miss SEN provision. It also caused avoidable distress to D and their parents, and avoidable time and trouble for Mrs X. The Council agreed to our recommendations to remedy this injustice, and to issue reminders to its staff.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman