Summary: We found fault with the Council in not delivering some special educational provision included in the complainant’s daughter’s (Y) Education Health and Care Plan and in not responding to the complainant’s (Mrs X) Personal Budget request. This fault caused injustice to Y and Mrs X. The Council has agreed to apologise, make symbolic payments to recognise the impact of the missed provision on Y’s education and to recognise Y’s and Mrs X’s distress. The Council has also agreed to share this decision with its Special Educational Needs and Disabilities Improvement Partnership Board.

The complaint

1. Mrs X complains about the Council’s failure to deliver some of the provision set out in Y’s Education Health and Care (EHC) Plan since July 2020. She says the lack of provision led to the deterioration in Y’s mental health and loss of education.

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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. 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. 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)
5. In R (on application of Milburn) v Local Government and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. Mrs X asked to investigate the non-delivery of special educational provision from July 2020. As explained in paragraph three of this decision we would normally investigate events which happened within 12 months from when the complainant came to us. For this complaint it would mean the beginning of our investigation in November 2022. I have decided there are good reasons to extend my investigation to the late June 2022 as:
• There was some delay in the Council’s complaint handling;
• The Council kept assuring Mrs X it would act which meant Mrs X did not expect to have to formally challenge the Council’s position;
9. I have not investigated the events after the end of May 2023. In Y’s amended EHC Plan the Council removed from Section F weekly mental health support sessions, therefore there was no longer duty to deliver this provision. Mrs X appealed Sections B and F of Y’s EHC Plan. As explained in paragraphs four and five of this decision we could not look at the Council’s amendments.

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How I considered this complaint

10. I spoke with Mrs X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. I reviewed referred to our Focus Report “Parent Power: personal budgets in EHC plans” published in November 2023. Although our Focus Report was published after the events complained about, it is still relevant to refer to its content. The Focus Report aimed at clarifying what can be expected from the Council in relation to Personal Budgets for children with EHC Plans based on the legislation which has been in place at least since 2014.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislative and administrative framework

Delivery of special educational provision

14. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
15. 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)
16. 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.

Appeal rights

17. 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.
18. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment;

What happened

Background

19. The Council issued an EHC Plan for Y in July 2020. In Section F it included: “weekly access to a school councillor and psychotherapist/ clinical psychologist to address her high levels of anxiety which is a primary barrier to her accessing education”. In Section G the Council included provision of some the Child and Adolescent Mental Health Services (CAMHS) therapy sessions to address Y’s anxiety. The Council named an independent school in Section I of Y’s EHC Plan (School 1).
20. In January 2022 CAMHS accepted Y’s referral for a block of therapy sessions included in Section G of her EHC Plan.
21. In March 2022 the Council carried out an Annual Review of Y’s EHC Plan and proposed to amend it. During the Annual Review the Council reviewed family’s Personal Budget request.

Delivery of special educational provision

22. At the end of June 2022 Mrs X told the Council Y had not been receiving her weekly mental health support sessions, despite repeated requests to CAMHS. Mrs X mentioned she had recently had an initial assessment for health provision to address Y’s anxiety, but this was a separate issue.
23. The Council contacted School 1 and found out that Y had access to a school counsellor but there was no psychotherapy or clinical psychology support available.
24. Not having received a response, Mrs X contacted the Council again two weeks later.
25. In mid-October 2022 an emergency review meeting took place. The decline in Y’s mental health was noted. It was recorded in the notes that School 1 could not meet Y’s needs as she refused to attend a specialist provision within School 1.
26. Responding to Mrs X’s concerns about the lack of provision for Y, in February 2023 the Council told Mrs X it had understood School 1 could meet all of Y’s needs through its specialist centre. At no point School 1 suggested it needed more funding to deliver provision included in Y’s EHC Plan. Besides CAMHS told the Council it had already delivered six sessions of support and this provision should be removed from Y’s EHC Plan at the next review.
27. In March 2023 an Annual Review of Y’s EHC Plan took place. The Council did not propose any amendments and noted the absence of any Personal Budget requests.
28. The Council issued Y’s final EHC Plan at the end of May 2023 and amended it in mid-July 2023. These plans did not include provision for weekly mental health support sessions in Section F. In the final EHC Plan issued at the end of May 2023 the Council did not name a specific school in Section I but the type of placement Y needed. In the final EHC Plan from July 2023 the Council named a special maintained school (School 2).
29. In the third week of June 2023 Mrs X appealed to the SEND Tribunal. One of the issues appealed was the Council’s removal of the provision for weekly access to a school councillor and psychotherapist/ clinical psychologist to address Y’s high levels of anxiety.

Complaint

30. At the beginning of November 2022 Mrs X complained about the lack of weekly mental health support sessions for Y. She also complained about the Council’s failure to consider her Personal Budget request, raised at the emergency review in mid-October. Mrs X said the recent decline in Y’s school attendance was caused by the lack of weekly mental health support sessions as they were meant to address her anxiety as a main barrier to education. Mrs X said Y had stopped attending School 1.
31. From the end of November 2022 Mrs X kept contacting the Council about her complaint. The Council responded at the end of January. It:
• Apologised for the delay;
• Stated that between September and November 2022 Y received support from the CAMHS crisis team. CAMHS support stopped as Y did not want to engage with a particular form of therapy offered.
• Before being named in Y’s EHC Plan during the appeal School 1 confirmed it could meet Y’s needs. School 1 provided the Council with the costing for the provision included in Section F of Y’s EHC Plan. If the school had considered it needed more funding to meet Y’s special education needs, it should have asked the Council to reconsider this during the reviews of her EHC Plan.
32. In April 2023 the Council advised Mrs X she would not be able to complain about the Council’s decision to remove special educational provision from Y’s EHC Plan as such decision can be appealed to the SEND Tribunal. Mrs X could, the Council said, complain about non-delivery of the provision included in the plan.

Analysis

Delivery of special educational provision

33. Councils have statutory duty to ensure delivery of special educational provision included in Section F of children’s EHC Plans. As stated in paragraph 15 of this decision this duty is non-delegable.
34. In its response to Mrs X’s complaint the Council said Y did not receive weekly mental health support sessions for the following reasons:
• Before it was named in Y’s EHC Plan School 1 confirmed it could meet all her needs and provided a list of provision which needed extra funding. Psychotherapy/clinical psychology support was not on the list. If School 1 needed extra funding, it should have asked for it.
• Between September and November 2022 Y received some support from CAMHS, following which CAMHS closed her case. This would justify removal of weekly mental health support sessions from Y’s EHC Plan.
35. I did not investigate anything that happened before June 2022. At least from the third week in June 2022 the Council knew Y was not receiving weekly mental health support sessions named in Section F of her EHC Plan. This is when Mrs X contacted the Council about this provision. The Council corresponded with School 1 and learnt Y had never received support from psychotherapist or clinical psychologist. The Council’s duty to ensure delivery of provision included in Section F is non-delegable and the Council should have acted once it had found out Y had not been receiving some of the provision.
36. The Council confused health provision included in Section G of Y’s EHC Plan with educational provision included in Section F. The wording of the EHC Plan as well as placing provision to address Y’s anxiety in two sections of the plan, suggest these were separate provision – CAMHS was to deliver a block of therapy sessions whereas psychotherapy or clinical psychology sessions were to be delivered on a weekly basis. Placing provision in different sections of the EHC Plan decides who is responsible for its delivery.
37. The Council’s failure to ensure delivery of weekly access to a psychotherapist/ clinical psychologist from the end of June 2022 till the end of May 2023 is fault. It caused Y and Mrs X injustice mainly by uncertainty of how this provision would have impacted Y’s ability to attend School 1 and to access education. We cannot, even on the balance of probability, say that if Y had received psychotherapy/clinical psychology sessions it would have had a direct link with her school attendance. This is because the Council’s later decision to name a special school for Y suggests Y needed specialist educational arrangements which even an independent mainstream school could not offer.
38. There is no way of finding out what impact psychotherapy/clinical psychology sessions would have had on Y’s access to education. The uncertainty caused by the Council’s failure to deliver this provision is significant as:
• the provision was to address Y’s anxiety as a primary barrier to access education;
• the Council’s failing to ensure delivery of this provision lasted for nearly a year, despite Mrs X’s repeated requests;
• in 2022/2023 Y was in Year 10, so any disruptions to her education would have affected her preparation for the General Certificate of Secondary Education exams.

Personal Budget

39. The Council’s policy on Personal Budget in EHC Plans says the decision whether a Personal Education Budget is appropriate will be made by the Council through its assessment process following request from the parents. The Council will respond within two weeks from the date of the request. If it decides that a Personal Budget is inappropriate, it will clearly record its reasons and share them with the parents where this has been requested.
40. Mrs X asked for delivery of weekly psychotherapy/clinical psychology sessions or a Personal Budget for this provision in mid-October 2022 and raised this again in her complaint at the beginning of November 2022. There is no record of the Council responding to Mrs X’s Personal Budget request. This is fault. The Council’s fault caused injustice to Y and Mrs X. The Council’s decision on Personal Budget would either allow Mrs X to seek provision herself or would trigger her right to ask for a review of the Council’s decision. Lack of the Council’s response increased Mrs X’s uncertainty and distress.

Service improvements

41. During our recent investigation 22 013 975 completed in July 2023 we found the Council had set up a Special Education Needs and Disabilities (SEND) Improvement Plan to address issues within its SEND service. We need to allow the Council some time before checking the effectiveness of any improvements. We will monitor the Council’s progress through our casework.

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Agreed action

42. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X and Y for the injustice caused to them by the faults identified. When apologising the Council will follow our Guidance on Remedies;
• pay Mrs X £1,350 to recognise the injustice caused to Y by the lack of special educational provision included in Y’s EHC Plan;
• pay Mrs X £750 to recognise the uncertainty and distress caused to her and Y by the Council’s failure to ensure delivery of Y’s special educational provision and to respond to Mrs X’s request for Personal Budget.
• share this decision with its SEND Improvement Partnership Board to ensure the faults we identified are considered as part of its SEND Improvement Plan.

The Council will provide the evidence that this has happened.

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Final decision

43. I uphold this complaint. For the reasons explained in the Analysis section I found fault with the Council for not delivering some special educational provision included in Y’s EHC Plan and not responding to Mrs X’s Personal Budget request. This fault caused injustice to Y and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman