Summary: Miss X complained the Council failed to provide all the support it should have done for her son, Y’s, special educational needs. There was fault in how the Council took too long to arrange the speech and language therapy in Y’s Education Health and Care plan. This caused Miss X avoidable uncertainty and frustration for which the Council should apologise and pay a financial remedy.

The complaint

1. Miss X complains the Council has failed to secure all the support set out in her son, Y’s, Education Health and Care (EHC) plan. She says the Council has filed to make sure Y’s school:
• provides full-time one-to-one teaching assistant support;
• uses specific techniques for teaching Y spelling;
• teaches Y maths in the same way as other pupils in the class;
• provides Speech and Language Therapy; and
• holds regular meetings to review Y’s progress.
2. As a result, she says that Y has gone without some of the support he needs, and this has significantly affected Miss X’s mental health. She wants the Council to provide all the support in Y’s EHC plan and pay her compensation, including her costs of challenging the Council.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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.
9. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
11. 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)

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What I have and have not investigated

12. I have not investigated how Y’s school chose to teach him maths, including what topics he was taught or how the school decided which staff member should guide his learning. The Ombudsman can only usually investigate what happens in a school when it is acting on behalf of a council to arranging special educational provision in an EHC plan. We cannot investigate how schools decide to teach students, or other internal school matters.
13. I have investigated the other parts of Miss X’s complaint.

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How I considered this complaint

14. I considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
16. 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 found

Education health and care plans

17. 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.
18. 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)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
20. There is a right of appeal to the Tribunal against various decisions councils make about EHC plans, including:
• 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; and
• an amendment to these elements of an EHC Plan.

What happened

21. Miss X’s son, Y, has special educational needs and has had an EHC plan from the Council since 2020. He attends a mainstream primary school, School A.
22. In 2023, Miss X appealed the content of Y’s EHC plan to the SEND Tribunal, based on a dispute about what support Y needed and how this was described in his EHC plan. The appeal ended in October 2023 when Miss X and the Council reached an agreement about what Y’s EHC plan should say.
23. The Council issued an amended final EHC plan, based on the agreed wording, in early November 2023. The support set out in Y’s EHC plan included:
• access to the full National Curriculum suitably adapted to meet his needs;
• full time one-to-one support from a teaching assistant;
• multi-sensory teaching for reading and spelling, 15 minutes three times a week;
• a focus on learning 'tricky' and key word spellings using Visual Auditory & Kinaesthetic (VAK) techniques, 10 minutes four times per week;
• six-weekly reviews by a speech and language therapist who would develop a programme of sessions to be delivered by a teaching assistant four times a week for at least 30 minutes, either one-to-one or in small groups;
• buddying with a suitable pier during lessons;
• carefully planned group work, with a focus on turn taking, sharing, listening and making friends; and
• termly reviews of his progress, in liaison with his parents and professionals working with him.
24. The Council sent the amended EHC plan to School A the day after it issued the plan. The School made some changes to Y’s timetable to implement some of the changes in support included in the plan. It also told the Council the NHS had said they would not be able to deliver the speech and language therapy (SaLT) in Y’s EHC plan because the advice and content had been written by a private SaLT provider. In the meantime, it told the Council it would continue with the plans previously produced by the NHS therapists.
25. Over the next few weeks, the Council sought clarity over who could deliver the SaLT support from Y’s EHC plan. It agreed it would arrange for a private provider to do this and asked Miss X who her preferred provider would be. The Council consulted with several providers later in November 2023, including Miss X’s preference. However, none of the providers the Council asked had capacity to take on Y’s support at that stage.
26. At the end of November 2023, Miss X’s solicitor told the Council Miss X did not agree the School was providing all the support in Y’s EHC plan. Miss X disagreed the School was providing full-time teaching assistants for Y, especially during his maths lessons and towards the end of the school day. She also said the School was not using the right techniques for teaching Y spelling and that there was no SaLT support in place. The solicitor told the Council Miss X would take legal action if it did not resolve the problems.
27. The Council responded to Miss X’s solicitors in early January 2024. It refuted Miss X’s claims that the support was not in place and explained both it’s and the School’s view about how the one-to-one support should work was different from Miss X’s. Both the Council and the School said Y had access to his teaching assistant during all lessons, but some of this support was provided in a classroom and in small groups, to help with Y’s development. It also disagreed the School was not using the right techniques to teach Y spelling and said the SaLT support had stopped because Miss X did not want Y to see the NHS therapist.
28. Around this time, the School wrote to Miss X to set out how it would support Y and how it would keep Miss X up-to-date about his progress. This included maintaining its current approach to Y’s one-to-one support.
29. Miss X was not satisfied with the Council’s response, so she complained to the Ombudsman in mid-January 2024.
30. Between late 2023 and February 2024, the relationship between Miss X and School A deteriorated. The School decided all future contact between Miss X and the School should be with a senior staff member and that Miss X should not contact other staff about Y. It told Miss X this was because of the “nature, tone and volume” of emails staff received from Miss X.
31. The Council managed to find a provider for Y’s SaLT support in February 2024, and the first session with Y at school happened in mid-March 2024.
32. The Council also arranged a review of Y’s EHC plan in mid-March 2024. Following this the Council issued a final amened EHC plan at the end of May 2024. One of the changes it made was to how the teaching assistant support was described. This clarified that Y would receive this support in a mixture of one-to-one, small group and classroom-based support.

My findings

33. The Ombudsman cannot consider complaints about the giving of instruction in schools, or matters of school conduct, curriculum, internal organisation, management or discipline. We can investigate complaints about a school’s actions when it is carrying out a function of a council to secure or arrange the support set out in an EHC plan, such as when a council asks a school to arrange specialist therapy on its behalf. In practice this means we can investigate whether special educational provision has been secured by a council, but not day-to-day details, which would be for schools to decide.
34. Therefore, I have considered any action the School took on the Council’s behalf to secure Y’s special educational provision, but I have not investigated the day-to-day decisions or professional judgement of the School or Y’s teachers about how that support should be delivered.

One-to-one teaching assistant support

35. There is a fundamental disagreement between the Council and Miss X about how the one-to-one teaching assistant support should be delivered. The Ombudsman’s role is to decide, based on an ordinary reading of Y’s EHC plan, whether the Council secured the teaching assistant support the plan set out.
36. Reading Y’s November 2023 EHC plan as a whole, I am satisfied the Council did secure the full-time teaching assistant support set out in the plan. The Council fully funded the School to provide that full-time support and the School employed teaching assistants to cover the role full-time, over the whole of the school week. Much of this time, according to Y’s timetable, was spent one-to-one with Y, teaching him reading, spelling and delivering the SaLT and other support. Other times, Y was supported in the classroom, or in small groups, by his named teaching assistants who were on hand to support Y when he needed them when he was engaged in learing. Y’s EHC plan mentions him taking part in both small groups and classroom settings, and my view is the teaching assistant support should be read in that context.
37. Any details of how Y should be supported in individual lessons, such as stepping back to allow Y to take part in classroom or group activities, or encouraging him to increase his independence, were day-to-day decisions for Y’s school and teachers to take. I cannot investigate how the School made those decisions.

Spelling techniques

38. The School explained to Miss X in November 2023 that the ‘VAK’ techniques for spelling were integrated into a daily, one-to-one ‘Precision Teaching’ session covering the most frequently used words. The School’s reviews of Y’s progress in both late 2023 and early 2024 show he was developing his spelling and scoring well in spelling assessments.
39. On the balance of probabilities, I am satisfied the Council ensured the School was providing this part of Y’s EHC plan. The exact techniques used during those sessions were for Y’s school and teachers to decide.

Speech and language therapy

40. I am satisfied there was a delay in arranging the SaLT support set out in Y’s November 2023 EHC plan.
41. The evidence shows the Council was aware, shortly after it issued the plan, that the NHS would not be able to deliver the SaLT support. When it discovered this, it took steps to arrange that support privately. However, the private providers it consulted did not have capacity to support Y until mid-March 2024.
42. Despite the Council’s best efforts to arrange an alternative provider, there was a delay of around 17 school weeks before the SaLT support restarted. I am satisfied that delay was ‘service failure’ and was therefore fault.
43. The delay meant Y missed out on around three reviews of his SaLT programme between November 2023 and March 2024. During that time, his teachers continued with the plans already prepared by his NHS therapist, which were out of date according to the review periods set out in his EHC plan. I cannot say what difference the plans being out of date made to Y’s progress, or how Y’s SaLT programme would have differed if it had been reviewed at the right times. There is a remaining uncertainty about this, which is an injustice to Miss X.

Reviews of Y’s progress

44. The evidence shows the School reviewed Y’s progress regularly, and this was based on input from the professionals working with him (apart from a speech and language therapist, before March 2024). I am satisfied this met the requirements in Y’s EHC plan for regular reviews of his support.
45. The plan also said the School should liaise with Miss X when carrying out those reviews. There is some evidence the School tried to do this. However, the relationship between the School and Miss X deteriorated over late 2023 and early 2024. I cannot investigate how the School decided what contact restrictions to put in place in response to what it perceived Miss X’s conduct to be. That is a matter of internal school management which the law says the Ombudsman cannot investigate.

Costs Miss X incurred

46. Miss X said, as a result of the Council’s and the School’s actions, she had to employ a private tutor for Y and she had to incur legal costs challenging the Council.
47. Y’s EHC plan did not say he needed one-to-one tuition in any particular subject and the Council did not have a duty to secure that provision. Arranging extra tuition was Miss X’s choice. I am not satisfied the Council’s actions caused Miss X to incur the tuition costs she did and therefore I do not consider the Council should repay these to Miss X.
48. Similarly, I am not satisfied that the Council’s conduct meant that Miss X reasonably incurred the legal costs she did. At the time Miss X’s solicitor wrote to the Council, it had explained its position about the one-to-one support and spelling teaching. It had also told Miss X it would arrange for a private provided for the SaLT support. As with the tuition, it was Miss X’s choice to seek advice and representation from a solicitor and an advocate. I am not satisfied the Council’s conduct meant that Miss X needed to take the action she did and therefore I do not consider the Council should repay her for these costs.

Changes to Y’s EHC plan

49. The Council proposed changes to Y’s EHC plan in May of 2024. Miss X has the right to appeal any changes the Council made to Y’s EHC plan to the SEND Tribunal. Since Miss X has previously done this, I consider it would be reasonable for Miss X to bring an appeal about any of the changes she did not agree with. Therefore, I cannot investigate how the Council decided to make changes to Y’s EHC plan in 2024.

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Agreed action

50. Within one month of my final decision the Council will:
• apologise to Miss X for the uncertainty and frustration caused by delays in arranging the speech and language therapy in Y’s November 2023 EHC plan; and
• pay Miss X £300 to recognise that distress.
51. The Council should provide us with evidence it has complied with the above actions.
52. 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 I have recommended in my findings.

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Final decision

53. I have completed my investigation. There was fault in how the Council took too long to arrange the speech and language therapy in Y’s EHC plan. This caused Miss X avoidable uncertainty and frustration for which the Council should apologise and pay a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman