Summary: Mr X complained the Council failed to deliver all the special educational provision in his child’s Education, Health and Care plan, and about its communication failures. We have found fault by the Council in failing to deliver the Occupational Therapy (OT) provision, a delay in arranging some other parts of the provision, and failing to communicate properly, causing injustice. The Council has agreed to remedy this by apologising, making payments to reflect the distress caused and the impact of the missed provision, taking action to put the OT provision in place and update Mr X, and making service improvements.

The complaint

1. The complainant, who I am calling Mr X, complains the Council failed to deliver all the special education provision is his child, who I am calling Z’s Education Health and Care plan. He says:

• Z was not provided with dedicated 1:1 support;
• Z’s OT was missed for certain periods and did not meet the specificity set out in the plan;
• Z’s Speech and Language Therapy (SALT) provision did not meet the specificity set out in the plan;
• classroom support is not of the required level of skill and experience; and
• there was a delay in providing the Augmentative and Alternative Communication (AAC) specified in the plan.

2. Mr X also complains the Council failed to communicate with him, respond to his questions or provide updates.
3. Mr X says, because of the failure to arrange all the provision in their plan, Z is only receiving part of the special educational support to which they are entitled, and their needs are not being met.
4. He wants the Council to work with the school and parents to ensure all the required provision is put in place. It should also arrange and fund catch-up provision for the specialist therapy and support Z missed during the school year September 2022 to July 2023.

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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.
6. 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)
7. 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)
8. 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

9. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
10. I invited Mr X 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

What should have happened

Education Health and Care Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their 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.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. 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.
14. We recognise it is not practical for councils to keep a “watching brief” on whether schools are providing all the special educational provision for every child with an EHC Plan. We consider councils should be able to demonstrate due diligence in discharging their duty to make sure the arrangements in the EHC Plan are put in place, and as a minimum have systems in place to:

• check the special education provision is in place when a new 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 the provision is not in place at any time.

Annual Reviews

15. Statutory guidance about the procedure councils should follow when reviewing an EHC plan is set out in the special educational needs and disability code of practice (the Code). This says a council must:

• review an EHC plan at least every 12 months. A council can consider holding an early review if there is a change in the child’s circumstances; and
• within four weeks of the review meeting, decide whether it will keep the plan as it is, amend, or cease to maintain it. The council must notify the child’s parent of its decision.

16. The issue of a final plan in accordance with a SEND Tribunal decision does not change the requirement to hold an annual review within 12 months of the previous review.
17. This means an annual review could take place shortly after a tribunal decision. But a council should not make any changes from what the tribunal ordered unless these are backed up by new evidence.

What happened

18. 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

19. Z has had an EHC plan since March 2021. They started at their school in September 2021.
20. Mr X appealed to the SEND Tribunal against the provision in Z’s final EHC plan.
21. In July 2022 the Council issued a new final plan in accordance with the Tribunal’s decision. The SEN provision in the plan included:

• 45 minutes a week of direct speech and language therapy (SALT) delivered by an appropriately qualified SALT therapist, 30 minutes of indirect SALT a week, and work by the SALT therapist to devise and monitor a communication programme for Z and train the staff working with Z;
• Low tech AAC systems;
• A full time skilled 1:1 dedicated teaching assistant;
• Direct and indirect occupational therapy (OT) delivered by an HCPC registered OT with experience and postgraduate training to Level 1 of the SI Network modules (or equivalent) in sensory integration, including 38 hours a school year of direct input and a daily programme of sensory strategies developed and monitored by the OT; and
• Arrangements and strategies about Z’s learning environment and training for staff working with Z.

September 2022: Mr X’s concerns about the delivery of Z’s provision

22. Mr X raised concerns with Z’s school about the level of Z’s SALT not meeting the specificity in the EHC plan.

February 2023: annual review meeting

23. Mr X raised further concerns with the school about the delivery of Z’s provision. The school contacted the Council who arranged a review meeting to discuss Mr X’s concerns.
24. The Council’s record of this meeting confirms the emergency review was called because of Mr X’s concerns the provision in Z’s EHC plan was not being delivered. It noted Mr X said:

• AAC had not been provided;
• school staff were not sufficiently experienced in working with children with autism and could not provide Z’s SALT support; and
• The OT service was struggling to make provision due to staffing issues and had not offered sensory integration therapy.

25. There was a discussion about the level of OT specified in the plan, whether it included sensory integration and, if so, how it could be delivered. The Council agreed to come up with a plan to deliver the appropriate OT provision and also consider a personal budget to allow Mr X to arrange the provision.
26. Mr X says the school agreed at the meeting some of the provision was not being made and suggested alternative placements be considered.
27. The Council said there would be no changes to the EHC plan. It issued a letter in April confirming this.

April 2023: Mr X’s complaint to the Council

28. Mr X complained about the delivery of the provision in Z’s EHC plan. He said:

• OT provision had not met the specificity set out in plan;
• Z had not been provided with full-time skilled dedicated 1:1 support;
• SALT had not been provided;
• A sufficiently differentiated personalised curriculum had not been provided;
• The school lacked sufficiently trained staff; and
• They had not been offered the opportunity to attend the training for the staff working with Z’.

The Council’s complaint responses

29. The Council said:

• It upheld the complaint about the failure to provide Z’s OT provision;
• Its SALT therapists regularly completed continuing professional development;
• All staff working within its specialist schools had the appropriate knowledge and experience to work with children with autism. They received regular supervision to ensure clinical skills and effective clinical reasoning skills continued to develop; and
• It accepted it had not followed the relevant procedures after the annual review meeting.

30. It apologised for the faults identified and said it would:

• liaise with its OT service to discuss the missed OT provision and plans to address this;
• take action to update Mr X about the way forward with Z’s EHC plan and any changes; and
• offer a payment of £100 to recognise Mr X’s time and trouble raising his concerns.

Mr X’s complaint to us

31. Mr X heard nothing further from the Council (apart from a letter apologising for the faults it had identified and an offer of £100) so he brought his complaint to us.

Council’s response to us

32. The Council told us:

• The school confirmed Z had received 1:1 support since the funding for this was provided. And all staff and classroom support had the training set out in the EHC plan;
• The SALT therapist provided details of their weekly work with Z. They recorded a total of 62.25 hours of SALT time for Z in the school year September 2022 to July 2023;
• It accepted Z’s OT provision had not been delivered;
• It accepted there was a delay in providing the AAC specified in the plan. This was not put in place until January 2023; and
• It accepted there had been communication failures. The no change letter in April was not sent in a readable format. It did not provide the promised updates.

33. The Council has also told us it:

• is currently undertaking a full review of its SEN services to ensure they are able to meet all the statutory obligations. This will include a period of action planning and change management. It expects the completed review process to be delivered for September 2024;
• is carrying out an extensive recovery programme to resolve any out-of-date activities within the statutory SEN service; and
• will be able to share the review findings and planned actions with all interested parties in mid-2024.

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

34. Part of Mr X’s complaint is that there has been a lack of specificity in some of the provision made for Z and it has been delivered by staff who are not sufficiently qualified, skilled or trained.
35. I am not able to judge the quality of Z’s provision or the levels of qualification or training of those working with Z. I have considered, based on the evidence seen, whether the Council arranged the delivery of the provision in Z’s EHC plan.

SALT provision

36. I have not found the Council failed to arrange Z’s SALT provision in their EHC plan. This is because:

• My understanding is the EHC plan provided for 1.25 hours of SALT a week to Z. Over 39 school weeks this is a total of 48.75 hours. The Council has provided information showing this provision was in place; and
• Z’s plan says SALT therapists delivering the provision should be appropriately qualified. The Council says its staff are, and I have not seen any information showing they were not.

classroom support provision

37. I have not found the Council has failed to put in place classroom support for Z in accordance with their plan.
38. This is because the Council has arranged for Z to attend the specialist placement named in their plan. The school had confirmed it could meet Z’s needs and that its staff had the relevant training set out in the EHC plan.

AAC provision

39. The Council has accepted there was a delay - from September 2022 to January 2023 – arranging Z’s AAC provision in the plan. This was fault.
40. I have considered the impact of this fault below.

1:1 support

41. I have found there was a period during which Z was not provided with the dedicated 1:1 support set out in the plan. This is because the school’s response (paragraph 32) indicates there was a delay and it was only put in place once funding was received. This was fault.
42. I have considered the impact of this fault below.

OT provision

43. I have found the Council failed to arrange the OT provision in Z’s plan. It has accepted Z’s OT from September 2022 onwards has not been delivered. This was fault.
44. I have considered the impact of this fault below.

Impact of the failure to deliver all of Z’s provision

45. 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.
46. I have considered the impact on Z of the missed SEN provision in the school year from September 2022 to July 2023. Z is a child of primary school age and at a stage when children are developing essential literacy, numeracy and social skills.
47. Most of Z’s educational provision in their EHC plan has been delivered. But, because of the delay in providing their AAC and dedicated 1:1 support for an initial period, and the failure to deliver all their OT provision, Z missed out on important parts of their SEN provision. I understand OT has still not been arranged for this school year from September 2023.
48. For these reasons, I consider the payment should be towards the lower end of the scale (and adjusted to recognise that AAC and dedicated 1:1 support were put in place after an initial delay).

Communication failures

49. The Council has accepted there were communication failures. I consider these included a failure to:

• explain the position clearly to Mr X following the review meeting in February 2023. My understanding is the Council confirmed it would not make any changes to the plan, which I would expect to be the case, so soon after the tribunal decision unless there were any new circumstances. But it did not make this clear in its complaint responses; and
• provide the promised updates or come back to Mr X about the possibility of a personal budget, its plan for delivering the OT provision or the suggestion of an alternative placement.

50. These communication failures were fault. Because of this Mr X was left in limbo, with no information about what the Council was doing to ensure all Z’s provision was put in place, causing him uncertainty, worry and frustration.

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Agreed action

51. 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 Mr X for its failure to provide all of Z’s SEN provision during the school year from September 2022 to July 2023, its continued failure to arrange OT provision from September 2023, and its communication failures. 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;
2. pay Mr X £400 to reflect the distress caused by the failure to deliver all of Z’s SEN provision and the frustration and uncertainty caused by its communication failures. This is a symbolic amount based on our guidance on remedies;
3. pay Mr X £1,500 for each school term Z did not receive their full SEN provision and support from the start of the school year in September 2022 until February 2023 (assessed as £2,250 over 1.5 school terms). And £1,100 for each school term from February 2023 to December 2023 (assessed as £2,750 over 2.5 school terms). Making a total payment of £5,000. This is a remedy for Z’s benefit to recognise the injustice the missed provision has caused them; and
4. Report back to us on the action it has taken to:

• deliver Z’s OT provision, including whether it has considered a personal budget for Mr X to allow him to arrange this;
• update Mr X on the plan for delivering Z’s OT provision, invitations to training sessions, and the timescale for the next annual review of Z’s EHC plan; and
• offer Mr X an opportunity to discuss with Z’s caseworker, or appropriate SEN manager, any outstanding questions he has about Z’s EHC plan, provision and placement.

52. And within three months from the date of our final decision, the Council should:
• Report to us on the progress of the review and recovery programme referred to in paragraph 33 above; and
• What it is doing to share its findings with interested parties.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as an appropriate 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