• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains the Council has declined to reimburse her for the cost of therapies she sourced privately to ensure the delivery of the provision set out in her son, Y’s, Education Health and Care Plan. We have found fault by the Council with the annual review process, review of therapies provision and handling of Mrs X’s complaint. The Council has agreed to apologise and make a financial payment to remedy the injustice caused to Mrs X.

The complaint

1. Mrs X complains the Council has declined to reimburse her for the cost of therapies she sourced privately to ensure the delivery of the provision set out in her son, Y’s, Education Health and Care Plan.
2. Mrs X says because of this she has suffered financial loss.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. 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

7. Mrs X said she had been paying for private therapies since 2021. Mrs X complained to the Ombudsman about this in October 2023. Therefore, in accordance with paragraph 3 above, I am investigating this complaint from October 2022.

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How I considered this complaint

8. I considered the information provided by Mrs X and discussed the complaint with her. I made enquiries of the Council and considered its response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Relevant legislation and guidance

10. 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. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
11. 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.

Securing the provision

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 the provision is not in place at any time.

Reviewing an EHC Plan

14. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
15. 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)
16. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
17. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended Plan is issued.

What happened

19. Below is a brief chronology of key events. It is not meant to show everything that happened.
20. Y is of primary school age and was on roll at a mainstream infant school. In March 2022, the Council issued a final EHC Plan that set out his needs and the provision he should receive. Y’s Plan said he required access to a programme of Speech and Language Therapy (SALT), devised by a speech and language therapist. The Plan said Y should receive scheduled daily sessions throughout the school day with support from the class teacher; school-based assistant or key worker. The Plan also required the Council to consider a further assessment and/or advice from an occupational therapist in relation to Y’s sensory needs and that the outcomes should be incorporated into Y’s educational planning.
21. The school carried out an annual review of Y’s EHC Plan in December 2022. Mrs X said she wanted more speech and language support and access to a sensory therapist. Mrs X said she was paying for Y to receive these therapies. The school reported that no changes to the Plan were required.
22. The Council then spoke to Mrs X in January 2023 and agreed to look for a specialist school for Y from September.
23. An occupational therapy (OT) assessment was carried out by the National Health Service (NHS). The report stated that Y should engage in proprioceptive (movement) activities. The package of support offered included three sessions in school and one in clinic.
24. The Council issued a final amended EHC Plan on 30 June, naming Y’s current school. The SALT provision remained the same. OT provision was added to the Plan as set out in the paragraph above.
25. Mrs X’s representative (Ms Z) complained to the Council. Ms Z said the Council had not met statutory deadlines for processing Y’s annual review and had failed to deliver SALT provision and the OT provision set out in the NHS report. Therefore, Y’s parents had funded independent therapies. Ms Z requested a reimbursement for the private sessions and continued funding until an appropriate special school with an integrated OT team was made available.
26. The Council responded to the complaint. It said that where parents intended to request funding for a private independent service, it would expect to be contacted before the sessions commenced. The Council would then consider the request and make a decision. However, in this case it appeared Mrs X felt that Y needed additional support and commissioned her own service without agreement. The Council agreed to carry out further enquiries with the NHS and if it had not met the provision outlined in the Plan it would consider contributing to the costs.
27. Mrs X appealed to the SEND Tribunal in August. She appealed Section I of the EHC Plan.
28. Ms Z made a stage two complaint to the Council. Ms Z said they had heard nothing further about OT and in the absence of provision Mrs X was continuing to fund private OT sessions. The Council refused to investigate the stage two complaint on the basis that Mrs X had appealed to the SEND Tribunal.
29. On 4 September, the NHS completed a review of Y’s speech and language needs. Mrs X and the school participated in the review. The report said that with support, SALT could be delivered at school and at home.
30. On 25 September, the Council held an annual review of Y’s EHC Plan. Mrs X explained that she sourced private therapy sessions for Y because he found it difficult to engage with the school for therapy and responded better with weekly one to one specialist provision in a quiet space. The school said it could not meet Y’s needs.
31. In October, Mrs X complained to the Ombudsman. Mrs X said the Council had declined to reimburse her for the cost of therapies she had sourced privately.
32. In November, the Council contacted Y’s school and said his placement would continue until September 2024. The Council said it would consider any requests about support for Y and that OT provision should continue in school. The Council also contacted Ms Z and confirmed that following the recent annual review, it would ask an independent occupational therapist to carry out further interventions. This was in addition to the three sessions in school and one in clinic.
33. On 22 November, the Council wrote to Mrs X about her request for reimbursement of therapy sessions that she had paid for. The Council explained that it had requested a written professional assessment or intervention advice from the independent speech and language therapist in July 2023, but this had not been received. The Council said this information was also not made available at the recent annual review. The Council considered the report submitted by the NHS which recommended that Y’s speech and language needs could be met at school and at home. On this basis, the Council said it would not reimburse Mrs X for any additional or alternative arrangements she made in relation to SALT provision for Y.
34. The Council explained it had recently received copy of a report submitted by an independent occupational therapist which stated Y had been attending sensory integration classes once a week since April 2022. The Council said in support of Mrs X’s appeal, the Council had had sight of correspondence between Mrs X and the occupational therapy service which confirmed they could not provide Y with the support he required. On this basis, the Council agreed to reimburse Mrs X for OT sessions from 17 April to 22 December.

Analysis

Annual review

35. Following the annual review of Y’s EHC Plan in December 2022, the Council should have issued a final amended Plan by 14 March 2023. The Council did not issue a final Plan until 30 June. The delay is fault and caused Mrs X frustration, uncertainty, and delayed her appeal rights.

Provision

36. The Council has an absolute duty to secure special educational provision specified in the EHC Plan. The Council should have been providing Y with special educational provision as set out in his final Plan.

Occupational Therapy

37. The Council has already agreed to reimburse Mrs X for OT provision between April and December 2023. Mrs X told the Ombudsman that the Council should reimburse these costs from October 2022. The Plan in place at this time was issued in March 2022, and required the Council to consider a further assessment and/or advice from an occupational therapist in relation to Y’s sensory needs and the outcomes incorporated into Y’s educational planning.
38. However, the records show that an assessment did not take place until January 2023. The delay in completing the assessment is fault. I cannot say that had the Council completed the assessment sooner it would have resulted in the same provision as identified in January 2023. Therefore, the Council’s delay has left Mrs X with uncertainty as to whether OT provision could have been in place sooner.
39. If the Council had issued the final amended EHC Plan on time, Y should have received OT provision from 14 March 2023 and, therefore the Council should have reimbursed Mrs X from this date.

Speech and Language Therapy

40. Y’s EHC Plan said he required access to a programme of SALT devised by a speech and language therapist.
41. The Council was aware from December 2022, that Mrs X was paying for private SALT sessions. Following Mrs X’s request for reimbursement, the Council considered the report submitted by the NHS, as this was the information it had at the time. The report recommended that Y’s speech and language needs could be met at school and at home. The Council was therefore satisfied the provision was available to Y and that Mrs X had made her own arrangements separately. This is a decision the Council was entitled to make. It is not our role to decide if the Council should reimburse Mrs X with the costs she had paid. I have found no fault in the way the Council reached its decision to not reimburse Mrs X.
42. However, there is a lack of clarity about the SALT provision Y has received in school. As part of its enquiries the Council asked for a report from the independent therapist, but it did not act on its duty to ensure Y was receiving the provision set out in his EHC Plan. I would have expected the Council to have contacted the school to establish the provision in place for Y. Failure to do so is fault and has caused Mrs X uncertainty about the provision Y has received in school.

Complaint handling

43. The Council said it would not investigate the complaint at stage two of its procedure because Mrs X had appealed to the Tribunal. This was fault. Ms Z had asked the Council to reimburse Mrs X for private therapy sessions she had commissioned. These issues were entirely separate to Mrs X’s appeal. The Council eventually responded three months later; however, the delay is fault and did cause further significant distress to Mrs X.

Remedy

44. In response to our enquiries the Council has offered to pay Mrs X £250 for the distress caused to her. I have considered this offer and made recommendations accordingly.

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Agreed action

45. The Council has already agreed to reimburse Mrs X for OT provision between April and December 2023. In addition to this, within one month of my final decision the Council will:
    • 1. apologise to Mrs X for the failings identified above;
      2. pay Mrs X £150 for the distress caused by the delay in issuing a final amended EHC Plan;
      3. pay Mrs X £400 for the uncertainty caused by faults identified with OT and SALT provision;
      4. determine whether it owes Mrs X a reimbursement for OT provision between 14 March 2023 and 17 April 2023. The Council should write to Mrs X with its decision. If a reimbursement is required, this should be made within one month of my final decision; and
      5. pay Mrs X £150 to recognise her distress with the handling of her stage two complaint.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have found fault by the Council causing an injustice to Mrs X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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