Summary: On behalf of Mrs X and her child B, Mrs H complains the Council has failed to secure the therapy provision in B’s EHC Plan since the 2022/23 academic year. We have found the Council at fault for failing to secure the Speech and Language Therapy (SALT) and Occupational Therapy (OT) provision specified in B's EHC Plan. We have also found the Council at fault for failing to properly address or respond to concerns about B’s provision. We have made recommendations to remedy the injustice this has caused B. We have also recommended the Council act to improve its services.

The complaint

1. On behalf of Mrs X and her child B, Mrs H complains the Council failed to secure the therapy provision set out in B’s EHC Plan for the 2022/23 academic year. Mrs H says the Council did not adhere to its duty to secure the therapy provision in the EHC Plan, despite receiving complaints and reviewing B’s EHC Plan.
2. Mrs H says this has affected B’s development and wellbeing. It has also caused Mrs X avoidable frustration and uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

5. I discussed the complaint with Mrs H, acting on behalf of Mrs X and B, and considered information she provided.
6. I considered information the Council provided and its responses to Mrs X’s complaints.
7. Mrs X, Mrs H and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

9. 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 which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school.
10. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
11. 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.
12. 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)
13. 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.

Appeal rights

14. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

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What I found

Summary of events

15. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
16. Mrs X’s child, referred to in this statement as B, has an EHC Plan. Section F of B’s current EHC Plan sets out the special educational provision B should receive. This provision includes teaching strategies that staff working with B should use to help B engage, as well as relevant training. Section F also specifies that:
1. All staff working with B should have a minimum of one hour’s training delivered by a Speech and Language Therapist (SALT) in Blank Level Questions. This is a learning model to help develop verbal reasoning and abstract language skills.
2. B would have a session of speech and language therapy each half-term, delivered by a SALT. The EHC Plan says each session would be up to one hour, with a further 45 minutes for liaising with teaching staff. It says the SALT should deliver the session together with trained staff, so the staff can use the techniques.
3. The SALT would create a communication programme that B could use in everyday exchanges. This would involve group work up to twice a week, for up to 45 minutes each. This would need two hours of staff training.
4. The SALT would need three-to-four hours a year to reassess, write reports and attend annual reviews of the EHC Plan.
5. An Occupational Therapist (OT) would:
1. provide general fine motor ideas and points for the school to consider;
2. provide guidance on strategies to help preserve calm and organisation; and
3. offer a block of sessions to provide targeted opportunities to work on postural stability, balance, and food preparation.
6. B would receive a sensory motor learning session twice a day for 10 minutes, delivered as part of a programme created by an OT. The OT would support the delivery of these sessions by reviewing the programme for three hours each term.
7. B would have access to a fine motor skills coordination programme, delivered either directly or in small groups, for 10 minutes each day. An OT would provide suitable programmes to use, reviewed each term.
17. The Council issued B’s current EHC Plan in March 2022, when B was in Year 6. B entered Year 7 in September 2022.
18. In September 2022, Mrs H wrote to the Council. Mrs H said:
1. B’s final EHC Plan had OT and SALT provision, but this provision was not in place. The Council had allocated therapists the previous academic year, but these therapists had told Mrs X the Council had not commissioned them to deliver therapy in the 22/23 academic year.
2. Therapists were meant to deliver direct training to school staff, which would be essential as B transitioned into a new school setting.
3. The Council had a statutory duty to secure the provision set out in the EHC Plan. Mrs H asked the Council to confirm if it had commissioned the therapy provision set out in the plan, or to explain why this had not happened. Mrs H said if the Council had difficulties commissioning the service, Mrs X would be happy to explore the use of a personal budget, so the family could commission services directly to ensure delivery.
19. The Council replied to Mrs H. In its response, the Council:
1. Said B’s final EHC Plan said that OT provision would be reviewed in March 2022 and SALT provision would be reviewed in Summer 2022.
2. Said these reviews had taken place and both services had discharged B.
20. Mrs H replied to the Council. She provided a copy of B’s EHC Plan, highlighting the therapy provision within it. Mrs H told the Council the EHC Plan was legally binding and asked the Council to urgently commission the therapy provision set out.
21. In October 2022, Mrs H complained about the continued lack of therapy provision.
22. In November 2022, the Council replied to Mrs H’s complaint. In its response, the Council:
1. Noted Mrs H’s concerns related to its efforts to commission SALT and OT, in line with B’s EHC Plan.
2. Said a SALT had seen B on three occasions in 2022. The Council said the SALT had issued a report in July 2022, confirming B had made good progress. The feedback said the SALT would write a report, provide recommendations to the secondary school, and then recommend discharge from the service.
3. Said an OT had reviewed B in May 2022 and conducted a transition meeting shortly afterwards. The Council said the OT had sent a report to Mrs X shortly after this and closed B’s case, as no further input was necessary.
23. In March 2023, there was an annual review of B’s EHC Plan. The paperwork from this review shows:
1. Those attending the review agreed the EHC Plan currently in place continued to be suitable, recommending no significant amendments.
2. B’s academic attainment met expected levels in most subjects, occasionally exceeding expected levels.
3. Those attending the review noted there were “…parts of the EHCP that cannot be delivered due to the SALT and OT not working with the school on this.” The notes show this comment related to the provision Mrs H had highlighted to the Council.
24. In May 2023, the Council wrote to Mrs X, issuing a decision to maintain the EHC Plan.
25. B has recently started Year 8. Mrs H tells me the Council still has not secured the therapy provision set out in the EHC Plan.

Analysis

26. B’s EHC Plan sets out the OT and SALT provision B should receive. Mrs H tells me the Council has not secured this since September 2022, when B moved into Year 7. In its correspondence with Mrs H, the Council said these services discharged B. The Council’s responses appear to confirm it has made no attempt to secure the provision from the point B moved into Year 7. The notes from the most recent annual review of the EHC Plan also confirm B is not receiving this provision.
27. Paragraphs 11 and 12 of this statement set out the Council’s responsibility to secure the provision detailed in B’s EHC Plan. This is a statutory duty, which the courts have found to be non-delegable.
28. This being the case, I have found the Council at fault for not securing the therapy provision in B’s EHC Plan since September 2022.
29. This fault has caused B an injustice. Mrs H says Mrs X believes this provision remains necessary for B’s educational attainment and social development. The notes from the annual review state that B is meeting, often exceeding, academic expectations, despite not having received this provision. The impact on B’s academic attainment is not therefore easily evidenced.
30. Nonetheless, the therapy provision was also in place to support B’s social and personal wellbeing and development. Mrs H has told me the lack of therapy provision has had, and continues to have, an impact on these matters. This impact may be difficult to quantify, but it remains the case B was entitled to the OT and SALT provision set out in the EHC Plan during the 22/23 academic year. There will therefore be some uncertainty as to how this lack of therapy provision has impacted B’s development, which is in itself an injustice.
31. The Council’s wider approach in this case also provides some cause for concern. As set out in paragraph 13, the Ombudsman does recognise it is not practical for councils to keep constant oversight of the provision being made to those with an EHC Plan. We therefore expect councils to act quickly when they receive concerns or complaints. Otherwise, councils should regularly consider the adequacy of provision arrangements by conducting annual reviews.
32. The Council first had notice of Mrs X’s concerns in September 2022. The Council’s response suggests it had decided the therapy provision was no longer needed. The Council expanded on this in more detail in its final complaint response, explaining the services involved had discharged B.
33. The Council can decide what provision it believes is in B’s best interests, taking account of the professional evidence available. However, if the Council believed the therapy provision was no longer needed, it should have conducted a review of B’s EHC Plan when Mrs H raised concerns. It could then have sought to amend the plan, by removing the OT and SALT provision from it. This would have provided Mrs X with a right of appeal to the SEND Tribunal against the content of the plan, if she believed this decision was wrong. The Council could also have reviewed the provision when Mrs X made a formal complaint in October 2022.
34. Further, notes from the annual review in March 2023 state B was not receiving the therapy provision in the plan. The Council again had notice that B was not receiving provision specified the EHC Plan. The Council should either have acted to secure the provision, or sought to amend the plan, taking account of professional advice. The Council issuing an amended EHC Plan would have provided Mrs X with a right of appeal. The Council instead appears to have maintained the plan, but not acted to provide parts of the provision within it.
35. I have found the Council at fault for failing to properly address the concerns raised about B’s special education provision, either through its complaints procedure or at annual review.
36. These faults caused Mrs X an injustice. Mrs X has not been able to challenge the Council’s decision-making, in the correct way, for more than a year. This has caused avoidable frustration, inconvenience, and distress to Mrs X. It has also caused uncertainty for B, as B has not received the therapy provision set out in the EHC Plan.
37. The Council issued a decision to maintain B’s EHC Plan on the 2 May 2023. Its decision letter confirmed it would maintain the EHC Plan, but did not provide a right of appeal against this decision.
38. Decisions to maintain an EHC Plan following annual review should come with an appeal right to the SEND Tribunal. I have found the Council at fault for not providing Mrs X with a right of appeal.
39. I do not believe this fault caused Mrs X an injustice. This is because Mrs X was happy with the EHC Plan and did not want it amended. She wanted the Council to secure the provision in the EHC Plan as specified.
40. Nonetheless, the Council must provide a right of appeal against a decision to maintain an EHC Plan following review. Failing to provide this right may cause injustice to others, beyond the events considered as part of this investigation. I have recommended the Council act to address this.

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Agreed action

41. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Remind relevant officers of the Council’s duty to secure the special educational provision specified in an EHC Plan, in line with Section 42 of the Childrens and Families Act and the SEN Code of Practice.
3. Remind relevant officers of the correct procedure for reviewing and amending EHC Plans, set out in the SEN Code of Practice. The Council should also remind officers the Code says decisions to cease or maintain an EHC Plan must provide a right of appeal to the SEND Tribunal.
4. Arrange a review of B’s EHC Plan to address any discrepancies between the provision in the EHC Plan and the provision B is receiving. The Council should conduct the annual review as soon as possible, taking account of the timescales set out in the SEN Code of Practice. Dependent on the Council’s decision, it should ensure Mrs X is provided with the appropriate right of appeal.
5. Pay Mrs X a total of £1200 in recognition of the therapy provision B has missed. This is broken down as follows:
1. £900 for the three terms in the 2022/23 academic year; and
2. £300 for the first term of the 2023/24 academic year.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman