Summary: Ms X complained the Council failed to ensure her son, Y, received all the provision and support set out in his Education, Health and Care (EHC) Plan. The Council delayed putting Speech and Language Therapy provision in place by around two weeks following a SEND tribunal order. It agreed to make a payment to Ms X to acknowledge that missed provision. It took appropriate steps to ensure the other support was in place. The Council was also at fault for a delay in sending its written communication plan after implementing a single point of contact for Ms X. It has already apologised for this, which is appropriate.

The complaint

1. Ms X complained the Council failed to ensure her son, Y, received all the provision set out in his Education Health and Care (EHC) Plan from November 2021.
2. Ms X said the Council’s refusal to investigate and address her concerns, and its use of a single point of contact, has caused her significant stress, for which she has needed GP support.
3. Ms X also complained about Y’s school, including that:
• the head teacher was acting as Special Education Needs Coordinator (SENCO), but they were not properly qualified to do so;
• the school was using funding for Y’s provision to pay its utility bills;
• Y was being bullied and the school was not taking appropriate action to address this;
• Y was at risk of harm in school and had run away from school on three occasions, but neither the school nor the Council had taken appropriate action to safeguard him; and
4. the head teacher had threatened to tell the Council the school could not meet Y’s needs if Ms X did not stop making complaints.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. 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
9. 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)
10. 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

11. In this case, the Council issued a first Education, Health and Care (EHC) Plan to Ms X’s son, Y, on 25 November 2021. Ms X was unhappy with the Plan. She appealed sections B and F. In her appeal, Ms X said:
• Y’s special educational needs were not adequately defined in section B;
• the wording used in section F was vague and did not adequately specify what should be provided to Y; and
• not all the needs in section B had a corresponding provision in section F.
12. As part of the appeal process, there was a mediation meeting in July 2022, in which Ms X raised concerns about the provision being delivered by Y’s school. Following that meeting, in September 2022, the Council wrote to Ms X to respond to her concerns about missed provision. It said it would review the provision at an annual review meeting in November 2022, which it did. However, the review was not completed because Ms X wanted additional expert advice and did not wish to complete the review until that had been obtained.
13. The Tribunal issued an Order on 29 March 2023 and the Council issued a final amended EHC Plan for Y on 19 May 2023.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

15. Given Ms X had appealed the provision in the EHC Plan dated 25 November 2021, I cannot consider her complaints about missed provision from that date (which was when the appeal right arose) until March 2023, the date of the Tribunal order. Since the appeal was essentially a general dispute about what provision should be arranged, I cannot separate this from the complaint about what provision was or was not delivered.
16. Further, the complaint about missed provision has also been raised through the school’s complaints process, and it is unlikely I will be able to add to that investigation.
17. Notwithstanding the above we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). Ms X did not complain to us until May 2023 about the lack of certain provision since 2021. Therefore, this complaint is late and it was reasonable for Ms X to have complained much earlier about it.
18. Therefore, using our general powers to decide what we should and should not investigate, and considering the other restrictions the law places on us, I have decided to consider the complaint about missed provision from May 2023 only. This was when the Council issued a final amended EHC Plan confirming the provision following the appeal. I have not considered any missed provision from early November 2023, when I made our initial enquiries of the Council.
19. It is not our role to consider what happens in schools except in relation to the provision of support in an EHC Plan. Therefore, I have not investigated the complaints set out at paragraph 3, apart from considering how the Council responded to Ms X’s to safeguarding concerns.

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How I considered this complaint

20. We have spoken to Ms X about her complaints and considered information she provided.
21. We have considered the Council’s response to our enquiries.
22. Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

23. A child with special educational needs (SEN) 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
24. 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.

Due diligence

25. 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.

Annual reviews and appeal rights

26. EHC Plans must be reviewed annually. The procedure is set out in legislation and statutory guidance: Special educational needs and disability code of practice: 0 to 25 years (the Code).
27. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176). A parent can appeal a decision to maintain a Plan without amendment. If the council amends the Plan, they can appeal the final amended Plan if they disagree with the special educational provision.

Following a tribunal order

28. 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.
29. Regulation 44 of the Special Educational Needs and Disability Regulations 2014 outline timescales which councils must comply with following a SEND tribunal order.
30. Following an appeal against the content of an EHC Plan and where the council has been ordered to amend the special educational provision in the Plan, then it must issue the amended EHC Plan within 5 weeks of the order being made. This means councils must ensure all of the provision in the Plan is in place for the child or young person to receive from that point. This was confirmed in the case R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation.

What happened

31. Ms X has a son, Y who is of primary school age. Y has a diagnosis of Autistic Spectrum Disorder (ASD) and other special educational needs. Y has an EHC Plan which sets out the specialist provision he is entitled to and mainstream primary school as his placement.

Missed provision 2023

32. The Council issued a final amended Education Health and Care (EHC) Plan on 3 May 2023, following an appeal to the SEND Tribunal. It issued a further amended EHC Plan on 19 May 2023 following some minor amendments such as typos.
33. Ms X complained the Council had not ensured Y’s school was delivering all the provision set out in section F of Y’s EHC Plan. Section F includes the following:
• 32.5 hours per week of support from a teaching assistant (TA), including 5 hours to cover unstructured time. Ms X complained Y was not receiving support at all times during the day and she was unsure the TA was appropriately qualified;
• a Now and Then tray;
• private targeted speech and language therapy (SALT) for 60 minutes per week between 7 May and 18 June;
• 1:1 precision teaching for phonics for at least 50 minutes per week;
• noise cancelling headphones; and
• transport for behavioural optometry therapy.
34. TA support. Y’s EHC Plan says he should receive support for 27.5 hours per week from a teaching assistant (TA), who should be highly trained in autism and complex needs, with experience in delivering speech and language therapy programmes and with children with demand avoidance behaviours. The TA will be qualified to at least level 3. In addition, the Plan says Y will be supported for 5 hours per week by a level 1 TA to cover unstructured times, such as lunchtime.
35. Y’s EHC Plan specifies the qualifications the TA should have. School 1 and the Council were not willing to tell Ms X the qualifications of the TAs supporting Y for data protection reasons. Ms X was concerned they may not be appropriately qualified.
36. The Council has confirmed it is satisfied Y is receiving 32.5 hours of TA support in line with his EHC Plan. He has an appropriately qualified Level 3 TA for 27.5 hours. He has a Level 2 TA at lunchtimes. It has provided details of the qualifications for each TA.
37. Now and Next Tray. This is a system whereby Y can choose work from the “now” tray to complete independently and, once Y has completed this, place it in a “completed” tray, at which point a reward will be given. The Council has confirmed this has been in place since September 2022.
38. Private Speech and language therapy (SALT). Y’s Plan includes 60 minutes of direct support from a private therapist each week. Ms X said the school wanted to instruct a therapist who was not available until 19 June, despite Ms X having provided details of two other providers who could deliver the support earlier. The Council said a therapist was in place to begin sessions on Monday 22 May. It said the school was closed for the following two Monday sessions due to half-term and an inset day. The therapist was on annual leave for the sessions on Monday 12 June but would arrange for Y to catch up with this session at a later date.
39. The Council said it was for Y’s school to decide which therapist to employ and it was not fault for the school to say it did not want to employ a therapist who was also the parent of another pupil. The Council said Ms X had not provided appropriate consent either verbally or in writing for the therapist to start on 22 May. Ms X disputes this as she said she was only sent an appropriate consent form on 18 June.
40. Y’s SALT sessions began on 19 June 2023 the day after Ms X provided consent.
41. One to one precision teaching for phonics. Section F includes 50 minutes per week precision teaching for phonics. The Council has confirmed this is in place and the school is using tracking sheets to monitor this.
42. Noise cancelling headphones. Y’s EHC Plan says he will require a range of equipment to support his sensory processing needs. The Plan said noise cancelling headphones must be trialled. The Council said it was satisfied these were available, but that Y was not always choosing to use them.
43. Transport for behavioural optometry. Y’s EHC Plan says he should receive fortnightly, 45 minute vision therapy sessions. These are provided online. The therapist has now said Y needs a behavioural optometry assessment, which needs to be carried out in a clinical setting. Ms X told me she could not take Y to the appointment because it was a 50 mile round trip, and it was not safe for her to drive as she was sleep deprived due to Y’s disabilities.
44. This assessment is not specified in Y’s EHC Plan. The Council agreed to fund the assessment but did not agree to provide transport because it said this was a health appointment. It said the assessment cannot be completed without Ms X’s consent. Neither Ms X nor her husband are willing to drive Y to the appointment.
45. An annual review of Y’s EHC Plan was held in January 2024. A vision therapy report prepared for the review indicated an in-clinic assessment was completed in November 2023 and sessions with an occupational therapist (OT) with sensory integration knowledge was recommended. It is for the Council to decide whether to amend the EHC Plan following the review. If it decides not to amend, Ms X will have a right to appeal that decision. If it amends the EHC Plan, Ms X can appeal the content of the amended Plan once it is issued, if she disagrees with it.
46. The Council’s response to Ms X’s complaints about missed provision will be considered further below.

Safeguarding concerns

47. On 28 June, Ms X raised concerns about the school commissioning an unqualified person to deliver occupational therapy (OT) for Y. She said this did not proceed following a challenge from Ms X, but the Council failed to consider this as a safeguarding issue.
48. On 11 July 2023, Ms X raised concerns about Y’s safety in school, including:
• school 1 commissioning unqualified staff to deliver provision in EHC Plans (in relation to the OT);
• Y being manhandled by a school visitor at an assembly in March 2023; and
• three incidents where Y had run away from school (one in May and two in July 2023).
49. In response to our enquiries, the Council said:
• the school commissioned a recognised expert who regularly works in schools to carry out a sensory audit but did not employ an unqualified person to deliver OT input. There was no implication of harm by a staff member;
• Ms X made a formal complaint to governors about that incident, which the school investigated. She also raised concerns with OFSTED and the police investigated; and
• it was not aware of any occasion when Y ran away from school. It is aware of one occasion where Y ran back to Ms X when being dropped off at school.

Complaints handling and single point of contact

50. In May 2022, Ms X complained to the Council about missed provision. The Council responded in June. Also in June, Ms X made a further complaint about missed provision and raised concerns about the governor incident.
51. The complaint about missed provision was discussed at a mediation meeting, and the Council responded formally on 14 July 2022. It said OFSTED and the Council were satisfied with the actions taken by the school 1 and no further action was needed. It could not provide details of the qualifications of staff for data protection reasons but said that staff were appropriately trained.
52. Ms X remained unhappy, and the Council responded again on 28 July 2023. It said:
• some of Ms X’s concerns related to school 1 and Ms X should pursue those using the school’s complaints process. This included concerns about the staff employed to support Y;
• school 1 advised it would support Y with a TA as set out in his EHC Plan but this was “unlikely, however, to involve him being escorted around the school building”. It added that although Y’s EHC Plan said he would receive 32.5 hours of TA support, TAs were permitted to leave Y in the care of another adult whilst, for example, going to the toilet;
• Ms X’s concerns about the delay in starting SALT and refusal to use her suggested providers should be raised with school 1;
• the employment of staff was a matter for school 1. The commissioning of an unqualified OT did not meet the threshold for safeguarding;
• it understood the vision therapy specified in Y’s EHC Plan was being delivered online. The behavioural optometry assessment was not specifically written into section F and Ms X had chosen a provider based some distance away. It maintained it was her responsibility, as a responsible parent, to undertake this journey as the visit is part of an assessment she needed to consent to;
• the lack of fidget toys and noise cancelling headphones should be raised with school 1, as should the incident with the visitor at a school assembly; and
• it would not communicate further about the SEND appeal as permission had not been given for Ms X to appeal to the upper tribunal.
53. Also, in the letter on 28 July, the Council explained that it would implement a communication plan to improve the way it communicated with Ms X in future and ensure it responded to her properly. This involved the use of a single point of contact, which was the Council’s SEND Team Manager. It said Ms X should allow ten working days for a response to her communications. It added that emails sent to other officers or mailboxes would be put on file but not responded to.
54. In response to our enquiries, the Council said it had received a very high volume of communications from Ms X. It said this included ongoing complaints to the school and other bodies, which were a continuation of issues raised in the SEND appeal that was finalised in March 2023.
55. The Council accepts there was a delay in sending a written communication plan, which it did not send to Ms X until 30 November 2023. It has already apologised to Ms X for the delay in sending this. It has confirmed to us that the arrangement will be reviewed on 28 July 2024.

My findings

Missed provision

56. We expect councils to check that a school has put the provision in place after a substantial amendment to an EHC Plan. If not, we would expect councils to take appropriate action to address this.
57. Following the tribunal order in March 2023 the Council issued Y’s amended EHC Plan within five weeks on 2 May. This means the Council had a duty to ensure provision outlined in the EHC Plan was delivered from this date, not the subsequent amended plan issued on 19 May.
58. Y’s SALT provision did not begin until 19 June 2023. A therapist was in place to deliver the SALT provision from 22 May, however Ms X did not consent as she believed the therapist was going on annual leave. While this was the case, Y would only have missed one SALT session as school was closed for two of the sessions due to half term holidays and an inset day. The school had agreed to add this session on. The two week delay in putting SALT provision in place following the tribunal’s order between 3 May and 22 May however was fault and meant Y lost out on around two SALT sessions.
59. The vision optometry therapy was delivered online. The therapist recommended a further assessment but, as that is not in section F of Y’s EHC Plan, the Council is not required to provide transport for this.
60. The Council has kept the provision under review through the annual review process, the latest review meeting being held in January 2024.

Safeguarding

61. The Council considered the various concerns Ms X raised either directly or through complaints to the school and OFSTED. It decided the concerns did not meet the threshold for safeguarding action. There was no fault in the way it decided this.

Complaints handling

62. Ms X complained on 28 June 2023. The following day she also complained to Y’s school about the same issues. The Council communicated with Ms X throughout June and July about her concerns about the provision for Y.
63. The Council responded formally to the complaint at stage 1 on 14 July and at stage 2 on 28 July. It said some of the issues should be raised with the school initially, and that other issues were part of the complaint the school was already considering. Otherwise, it responded to the issues Ms X raised and there was no delay in it doing so. I have not found fault.

Single point of contact

64. Ms X sent the Council a high volume of communications, and these were going to various officers across more than one service. She also raised concerns through communications with the school and other bodies. In July 2023, the Council implemented a single point of contact in order to manage those communications effectively. It acted in line with its policy and will review the arrangement in July 2024, which is appropriate.
65. It would have been good practice to send a written communication plan within a few days of implementing a single point of contact. The Council did not send this until November 2023, at which point it apologised for the delay. The four month delay was fault. Given that its letter in July explained that Ms X would need to communicate via a single officer and told her who the officer would be, I consider the apology was an appropriate remedy.

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Agreed action

66. Within one month of the final decision the Council agreed to pay Ms X £100 to acknowledge Y’s loss of around two SALT sessions at the start of May 2023.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman