Summary: The Council failed to ensure that Y received the special educational provision set out in their EHC Plan. The Council has agreed to apologise and make payments to Y and to Ms X and to take action to prevent similar failings in future.

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. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. 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)
9. 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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What I have and have not investigated

10. I have investigated Ms X’s complaint about the Council not securing the special educational provision set out in Y’s EHC Plan dated 20 January 2023. I have not investigated Ms X’s complaint about lack of provision before January 2023 because this was the subject of a previous complaint we investigated.
11. As explained in paragraph seven, we cannot investigate matters which have been appealed to the SEND Tribunal. Ms X considers the Council failed to follow the professional advice it received from an educational psychologist and an occupational therapist which led to a failure to include appropriate provision in the plan. I cannot investigate this aspect of Ms X’s complaint because she has appealed to the SEND Tribunal.
12. I have also not investigated Ms X’s complaint that Y is not receiving a full-time education because this was included in her appeal to the SEND Tribunal, and we therefore do not have jurisdiction to investigate.

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How I considered this complaint

13. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Special educational needs

14. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Education otherwise than at school

15. If school or college is not appropriate for the child or young person with an EHC Plan (for either all or part of their education), the council can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school, college or early years setting. This is known as ‘education otherwise than at school’ (EOTAS).

Background and key events

16. Ms X’s child, Y, is 15 years old and has special educational needs related to a diagnosis of autism, selective mutism and anxiety.
17. Y has an EHC Plan and is educated via an EOTAS package.
18. Following a review, it was decided to make changes to Y’s EHC Plan and an amended final EHC Plan was issued in January 2023.
19. Ms X lodged an appeal because she disagrees with what the plan says about Y’s needs and what the plan says about the provision required to meet those needs.
20. Ms X complained to the Council in March 2023 that it was failing to make the provision specified in the plan. In the Council’s response, it explained how it intended to address Ms X’s concerns. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

21. Ms X says that there has been no speech and language therapy (SALT) in place since May 2022.
22. I have not investigated the period May 2022 to January 2023 because we have previously investigated the lack of education and specialist provision during this period.
23. The final EHC Plan issued in January 2023 details the amount of SALT to be provided. The Council says it has provided this therapy since August 2023.
24. Ms X disagrees. She says that since August 2023, a speech and language therapist has provided some training to the tutors working with Y and has carried out some work behind the scenes, but that Y has not received the 12-week targeted block of therapy with a speech and language therapist that she should have received. She says that Y has only had two sessions with a speech and language therapist, and that was in December 2023.
25. On the balance of probabilities, I consider the Council has failed to provide all the SALT set out in the plan and the provision Y has received was significantly delayed. This was fault.
26. Y’s EHC Plan also includes support to deal with anxiety. The Council says a Therapy Assistant was allocated to Y in December 2023 to deliver this provision. Y should have received this provision in January 2023. The Council’s delay here was fault.
27. Y’s EHC Plan states that academic work leading to GCSEs will be provided and that academic progress will be monitored.
28. The Council says that Ms X’s concerns about no one overseeing the maths curriculum and monitoring progress were resolved in September 2023 when a maths tutor started working with Y. Ms X says the maths tutor did not start to oversee the maths curriculum until January 2024.
29. On the balance of probabilities, I consider the Council failed to ensure Y’s academic progress was monitored before January 2024. This was fault.

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Agreed action

30. Within four weeks, the Council will take the following actions:
• Work out how much therapy Y has missed (SALT and psychological therapy) and provide us with a plan to show how it will ensure Y receives this missed provision during this academic year.
• Apologise and make a payment of £1000 to Y. This is to acknowledge the impact of the delayed provision and should be used to benefit Y’s education.
• Apologise and make a payment of £200 to Ms X to acknowledge her frustration and the trouble she has been put to pursuing her complaint.
31. Within eight weeks of my final decision, the Council will review its procedures to ensure that:
• It has robust processes in place to check special educational provision in an EHC Plan is put in place on time.
• Its commissioning arrangements are sufficient to meet the needs of children and young people locally.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation and uphold Ms X’s complaint. There was fault by the Council which caused injustice to Ms X and Y. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman