Summary: Mrs X complained the Council failed to deliver all the provision is her son’s Education, Health and Care Plan affecting his academic prospects. The Council has already accepted fault and provided an appropriate remedy so we will not investigate the matter further.

The complaint

1. Mrs X complains the Council failed to deliver all the provision in her son’s Education, Health and Care Plan from September 2022. In particular she says speech and language therapy, occupational therapy and a tablet was not provided. She also complains this provision was then removed from his EHC Plan following the annual review in September 2023.
2. Mrs X says her son has missed out on provision which affects his academic prospects.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

7. 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. 
8. The EHC Plan is set out in sections which include: 

• Section B: 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 educational placement 

Mediation

9. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.

Appeal rights and the Ombudsman

10. 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)
11. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Key facts

12. The Council issued an EHC Plan for Mrs X’s son, W, in July 2022. The provision stated at Section F of this EHC Plan included:
• Direct Speech and Language Therapy for 30 minutes per week to be used flexibly
• Provide a tablet loaded with software and staff with experience will teach W how to use it. Mr and Mrs X will also be shown how to use the technology
• Provide a block of up to six occupational therapy sessions per term of around 45 minutes direct therapy.
13. Mrs X expected the provision to start when W started a new school year on 3 September 2022. However, this was not provided until 15 May 2023 when the first occupational therapy session took place.
14. The annual review of W’s EHC Plan was carried out and in September 2023 the Council issued a final plan which removed all SALT and OT provision. Mrs X says the Council would not agree to mediation and so she exercised her right of appeal. When I spoke to Mrs X about her complaint she confirmed the Council has re-instated the SALT and OT provision and issued a new EHC Plan on 21 February.
15. Mrs X submitted a formal complaint to the Council about its failure to deliver the provision in W’s EHC Plan from September 2022 onwards. The Council wrote to Mrs X on 28 September 2023 upholding her complaints about its failure to deliver the provision set out in Section F of the EHC plan. It has apologised to Mrs X and made a payment of £3,700 to recognise the lost SEN provision from September 2022 to July 2023. It also made Mrs X a payment of £200 to recognise her time and trouble in pursuing the complaint.

Analysis

16. The Council has accepted fault for its failure to deliver the provision set out in Section F of W’s EHC Plan. The SALT and tablet were not provided at all and only three months of occupational therapy was delivered. The Council has now paid Mrs X £3,900 and written to her explaining the factors taken into account when deciding this was an appropriate amount.
17. I am satisfied the payment made to Mrs X is appropriate for the injustice caused by the Council’s fault. It is in line with the amounts recommended by the Ombudsman in similar cases.
18. I am also pleased to note the complaint response sent to Mrs X sets out other actions it intends to take to prevent similar issues affecting other people.
19. Mrs X also complained that W’s provision ended following the annual review of his EHC Plan in September 2023. I am aware Mrs X was unhappy the Council refused to enter into mediation and so had to use her right of appeal.
20. As explained above, the Ombudsman is unable to consider matters when a right of appeal has been used. Mrs X’s appeal rights engaged in September 2023 when the Council issued W’s final EHC Plan and so I cannot consider issues directly related to that. This includes the Council refusing to enter mediation and lack of SEN provision from September 2023. I note the provision has now been reinstated but due to the fact Mrs X appealed, I cannot consider the impact of any missing provision from September 2023 to date.

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Final decision

21. I will now complete my investigation as a suitable remedy for the injustice caused by the Council’s fault has been provided.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman