Summary: Mrs X complained the Council failed to provide her child, Y, with all the provision set out in their Education Health and Care Plan. The Council was at fault as it failed to provide Y with the play therapy, speech and language therapy and teaching assistant support set out in their Plan between September and November 2023. The Council has agreed to apologise and pay Mrs X £600 to acknowledge the missed provision and frustration this caused.

The complaint

1. Mrs X complained the Council failed to provide her child Y with all the education and specialist provision set out in her Education, Health and Care Plan between June 2023 and November 2023. Mrs X says this impacted Y’s mental and physical health.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. Where a Tribunal orders a council to amend the special education provision specified in an EHC Plan the council should issue the amended plan within five weeks of the order being made (Regulation 44 of The Special Educational Need and Disability Regulations 2014)
6. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
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 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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How I considered this complaint

9. I have considered the information provided by Mrs X and have discussed the complaint with her on the telephone. I have considered the Council’s response to our enquiries and the relevant law and guidance.
10. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

EHC Plans

11. 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. 
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

What happened

13. Following a school placement breakdown Y received education otherwise than at school (EOTAS).
14. In late June 2023, following a SEND Tribunal, a package of EOTAS provision was agreed to meet Mrs X’s child Y’s needs. At that time School A was being consulted with a view to Y starting there once a place was secured.
15. The Council issued Y’s final EHC Plan stating EOTAS in early August 2023, at the start of the school holidays. Mrs X requested some amendments, and the Council issued an amended plan nine days later. At this time Y was receiving Occupational Therapy support and six hours of home based tutoring per week.
16. The EHC Plan stated Y should receive:
• 25 hours per week of educational curriculum 38 weeks per year comprising 15 hours by a tutor of english, maths, science and art and 10 hours by a teaching assistant of SEN, speech and language, independence and PE. It stated the tutor would devise a transition plan aiming to increase teaching hours up to the full 25 per week based on Y’s ability and capacity.
• Bespoke social communication programme twice a week for a minimum of 30 minutes per session with a meeting each half term with a speech and language therapist
• Twice weekly one hour play therapy session.
• Occupational Therapy support.
17. In July 2023 School A informed Mrs X it could not meet Y’s needs. Mrs X contacted School B who felt they may be able to meet Y’s needs and the Council agreed to consult the School and to continue with the currently commissioned existing providers.
18. In July 2023 the tutoring company confirmed it was providing Y with six hours tuition per week and was looking to increase this from September 2023. Y’s SEND case manager also contacted a potential teaching assistant Mrs X had identified. They responded by email and said they had looked at Y’s plan but asked if there was further information as they wished to establish Y’s needs and the expectations on them before they committed. I have seen no evidence this email was responded to by the Council. Around this time School B advised the Council it could offer Y a place.
19. The SEND case manager took the case to the Council’s panel for approval. The panel did not hear the case in late July due to the volume of cases. At the next panel in mid-August it deferred the decision. And in late August it decided not to agree to the placement as, from information it had seen about the school, it did not consider it could meet Y’s needs.
20. In mid-October 2023, through a solicitor, Mrs X made an application to the Tribunal to review its previous (June 2023) decision and with a view to naming School B in the EHC Plan. Following a hearing, in late October, the Council agreed to name School B in the Plan. The Council issued Y’s plan, naming School B, in late November 2023.
21. In December 2023 Y started at School B receiving one hour of education per day.

Findings

22. The Council had a duty to ensure Y received the provision set out in section F of their EHC Plan. However, it was not expected to provide education during the school holidays. Y’s plan was finalised in early August 2023, just over five weeks after the Tribunal which is slightly longer than the law allows. However, as the date it should have been completed by, and the actual date it was completed, were both during the school holidays, this did not cause a significant injustice.
23. The records show Y was receiving some provision and that it was agreed this would continue in September 2023. The case manager was in contact with a teaching assistant potentially to support Y, but I have seen no evidence this was pursued further after July 2023. The Council did not seek any speech and language therapy input and the Council has also not provided any evidence to show it had arranged play therapy for Y, as set out in their EHC Plan. This is fault.
24. In mid-October 2023 Mrs X requested that the Tribunal review its previous decision. However, the Council was required to ensure Y received the provision in their Plan until a new Plan was finalised, regardless of the application to Tribunal. So the Council should have ensured Y received the provision in their plan up to the end of November 2023 when it issued the new plan in response to the Tribunal.
25. Where fault has resulted in a loss of education provision we usually recommend a remedy payment of between £900 to £2400 a term to acknowledge the impact of the loss. In deciding on the figure we consider factors such as the severity of the child’s SEN and what education provision was made in the meantime. I have considered that Y was able to receive some tuition and OT support and so have recommended a payment at the lower end of the range.
26. Mrs X incurred solicitor’s costs in getting the Tribunal to re-open the case. We cannot investigate where there is a right of appeal and someone has used that right. Mrs X appealed to the Tribunal and so we have no discretion to investigate where that right has been used. The solicitor's costs were incurred as part of the appeal process.

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Agreed action

27. Within one month of the final decision, the Council has agreed to apologise to Mrs X and pay her £600 to acknowledge the impact of the missed provision for Y from September to November 2023 and the frustration this caused. 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.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman