Summary: The Council was at fault for causing delays to Mrs B’s son’s special educational needs support. It was also at fault for how long it took to respond to her complaint. It has now agreed to make symbolic payments to Mrs B to recognise her, and her son’s, injustice.

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how the Council decided and delivered her son’s special educational needs support. I refer to her son as C.
2. Mrs B says:

1. The Council took two years to decide C’s support, and the process cost Mrs B around £10k in professional reports.
2. After the Council decided C’s support, there was then a significant delay before it delivered it.
3. The Council caused a delay when responding to Mrs B’s complaint.
4. The Council conducted itself poorly during appeal proceedings considered by the Special Educational Needs and Disability (SEND) Tribunal.

3. Mrs B says the Council’s failings caused C distress and they meant he was in an inappropriate school for longer than he needed to be. She wants the Council to refund her for what she spent on professional reports, and to improve its service.

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The Ombudsman’s role and powers

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. Service failure can happen when a council fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by a council to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. If we are satisfied with a council’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)
9. 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

10. I have not considered any complaint Mrs B makes about events before the SEND Tribunal hearing in September 2022. Anything which happened before then is too old and I have seen no good reason why she could not have complained earlier.
11. I have not looked at any complaint Mrs B makes about the way in which the Council considered C’s needs or made decisions about his support. These are matters which could have been (and, in some cases, were) appealed to the SEND Tribunal. My role cannot overlap with that of the Tribunal.
12. For the same reason, I have not considered how the Council conducted itself during the Tribunal hearings. And I cannot recommend a remedy for the money Mrs B spent on professional reports because the Tribunal has powers to award costs as part of an appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
13. This means I have investigated Mrs B’s complaints about delays (post-September 2022) to the Council’s decision-making, complaint-handling and delivery of C’s support.

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How I considered this complaint

14. I considered:
• Information from Mrs B and the Council.
• Relevant law, including case law.
• The Ombudsman’s guidance on remedies.
15. Mrs B 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

The Council’s responsibilities

16. A child with SEN 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, including section F: the special educational provision needed by the child or the young person.
17. If the SEND Tribunal orders a council to issue an EHC plan, the council must issue the plan within 11 weeks of the order being made. (SEND Regulations 2014, Regulation 44, paragraph 2c)
18. Councils then have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Section 42 Children and Families Act 2014)
19. The Courts have said the duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver 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

20. In September 2022, the SEND Tribunal ordered the Council to issue an EHC plan for C. It did so in January 2023.
21. The plan named a new school and said C was to receive (among other things):
• 12 sessions of occupational therapy.
• Six sessions of speech and language therapy.
• A programme devised by a speech and language therapist and delivered to C by school staff for three hours a day.
22. C started at his new school in February. Mrs B says the school tried to arrange C’s therapy but was unsuccessful.
23. In April, the Council tried to arrange the therapy as well. It discussed this with a private provider and was told that there was no capacity to deliver what C needed until the next academic year (in September).
24. In June, the Council agreed that C’s therapy could start in September.
25. Mrs B complained to the Council in early September. She said C was still yet to receive the therapy set out in his EHC plan.
26. C began receiving his speech and language therapy at the end of September. His occupational therapy then began in early November.
27. The Council did not respond to Mrs B’s complaint until January 2024. It said:
• It could have issued C’s EHC plan quicker.
• Although it made efforts to arrange the therapy in C’s EHC plan, it did not share these efforts with Mrs B, even though she repeatedly asked for updates.
28. The Council apologised to Mrs B for the delays and the poor communication. It offered her symbolic payments of £400 (for the delay to the EHC plan) and £100 (for the complaint-handling delay).
29. The Council also said it had an ongoing service improvement plan which was approved by the government and published on its website (to which it provided a link). It said this involved a redesign of its SEND service.
30. In March, when responding to our initial enquiries, the Council sought information from C’s occupational therapist. Although not all of the 12 sessions have been completed (primarily because of the therapist’s unavailability), he said C “now needs a break in sessions to consolidate the work he has done and I will be suggesting another block for him come September”.

My findings

31. The Council has already accepted that it was at fault for delays to its complaint-handling and to C’s EHC plan. It has apologised to Mrs B and has offered her adequate symbolic financial remedies to recognise her, and C’s, injustice. I have nothing to add.
32. The Council has not, however, accepted that it was at fault for the delays to C receiving the support in his EHC plan. It refers to efforts it made to secure the provision.
33. Although the Council did take some steps to try and arrange C’s therapy, he still went without it for several months.
34. Irrespective of whether this delay was caused by the Council or by an external provider, the Council remained ultimately responsible for the delivery of the support, and therefore it was at fault.
35. C was likely caused an injustice. He did not get the support as soon as he needed it. And the delay in finding a speech and language therapist likely affected him from the start (as he was supposed to have a daily programme devised by the therapist).
36. The Council should make a symbolic payment to Mrs B which recognises this. The remedy should, however, also recognise that C’s education does not otherwise seem to have been unsuitable. It also appears the Council did eventually put the right support in place.
37. The Council should make a further symbolic payment to recognise the time and trouble Mrs B appears to have gone to throughout the period in question.
38. The Council has taken steps to improve its service. These steps are a matter for the Council to decide, not the Ombudsman. Time will tell whether they are effective.

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Agreed actions

39. Within a month, the Council has agreed to:
• Make the symbolic payments to Mrs B it agreed in its complaint response (totalling £500) to recognise delays to its complaint-handling and to C’s EHC plan.
• Make another payment of £750 to Mrs B, on behalf of C, to recognise the period that C went without the support he needed.
• Make a further payment of £250 to Mrs B to recognise the time and trouble she went to trying to get C’s support in place.
40. The Council will provide us with evidence it has made these payments.

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Final decision

41. The Council was at fault.

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Investigator's decision on behalf of the Ombudsman