Summary: The complainant, Miss X, complained that the Council has failed to deliver the specialist provision in her daughter's education, health and care plan, failed to act on professional reports and failed to respond to her complaints in a timely manner. We find the Council was at fault for failing to respond to Miss X’s complaints in a timely manner. This caused significant stress to Miss X. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Miss X, complains that the Council has:
1. failed to deliver the specialist provision in her daughter's education, health and care (EHC) plan;
2. failed to act on professional reports; and
3. failed to respond to her complaints in a timely manner.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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.
6. 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.
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)

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What I have and have not investigated

8. I have investigated parts a and c of the complaint.
9. I have not investigated part b. This is because if Miss X had the right to appeal the contents of the 2022 EHC Plan if the Council had not included information from professional reports. I consider it was reasonable to have expected her to use this right.
10. I have not investigated anything that occurred after the EHC Plan was finalised in June 2023 for the reasons detailed in paragraph 15, 16 and 17. This includes any lack of consult before removing provision from the EHC Plan.

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How I considered this complaint

11. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plans

13. 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. 

Maintaining the EHC Plan

14. 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)  
15. 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. 

Law and guidance

16. 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)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

The Council’s complaint’s policy

19. The Council’s policy states at stage one of its process, it will investigate concerns and provide a response within 10 working days after the date of its acknowledgement. At stage two of its process, it will provide a response within 20 working days after the date of its acknowledgement.

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Summary of the key events

20. An educational psychology (EP) report was carried out in January 2022. Miss X said this report did not involve any visits to school or observations. The report stated:
• Miss X’s daughter, B had an EHC Plan;
• EP involvement was sought in December 2021 due to ongoing concerns about B’s attainment, progress and her emotional wellbeing;
• B had a positive start to the year but became much more dysregulated around the October half term;
• B was very well supported at school; and
• the EP recommended the school had restorative conversations with B.
21. There was an inclusion support plan completed in June 2022. It noted:
• B’s behaviour was escalating in school;
• school would complete a behaviour support plan and risk assessment;
• school would try a variety of different strategies to motivate and support B; and
• school would get B’s perspective on how she feels about herself and school.
22. Miss X contacted the school and Council in the same month. She said there was a lack of professional advice. She said the most recent occupational therapy (OT) report was outstanding.
23. The OT report was completed in July 2022. The report requested the following updates:
• provision of sensory strategies that B would use within the classroom;
• access to a quiet space for tasks that require a greater level of focus, are perceived to be more challenging and triggering for B or at times when she is dysregulated; and
• a block of six weekly sensory attachment intervention sessions to be carried out when transitioning to a new class, school or when there is a change of staff.
24. At the request of the school, an emergency review was held in the same month. It was noted the school felt the EHC Plan needed updating as they said it did not reflect B’s needs or the provision required.
25. The school sent the Council the review paperwork within two weeks and the Council issued a draft EHC Plan in August 2022.
26. The final EHC Plan was issued in November 2022. It stated:
• B would receive 1:1 adult support across the school day;
• B would be exposed to a range of sensory sensations and provided with ‘down-time’ where is able to follow her own lead;
• school will continue to explore the use of sensory supports to address B’s anxiety/over-stimulation in noisy/busy environments; and
• school will continue to seek advice from the OT service as required.
27. A further annual review was held in April 2023. It was noted that school said they could not meet B’s needs and were looking into alternative provision.
28. The Council issued the draft EHC Plan in April 2023, followed by the final plan in June 2023. The final plan had removed the previous provision which stated, ‘school will continue to seek advice from the OT service as required’.
29. Miss X submitted an appeal against the EHC Plan.

Complaint to the Council

30. Miss X complained to the Council on 11 October 2023. She said:
• the Council was in breach of duty to provide the provision it had removed;
• the paragraph was removed from the EHC Plan without consultation and without any professional advice;
• she commissioned an OT report in July 2022 which identified a need for staff training and said this had not been implemented; and
• C was currently out of school and asked the Council to arrange an alternative.
31. The Council responded at stage one of its complaint’s response on 24 November 2023. It said:
• records indicated the SEN team had liaised with school to clarify whether a referral to the OT service had been made. It was understood that a referral was made on 9 November 2023;
• records indicated the SEN team had continued to advise school as to the implementation of a re-integration timetable for B. Despite disputes over provision, there was still a requirement that the school plan for B’s attendance;
• in regard to the removed wording from the EHC Plan, it said this wording did not constitute special educational provision. It said it was in no way specific or measurable;
• it was a reasonable expectation that the school would liaise with therapeutic teams, such as OT’s to seek advice as required;
• there was no evidence to support B being out of school; and
• the SEN team continues to advise that the school work with Miss X on agreeing and implementing a timetable that will see B’s re-integration.
32. Miss X asked for her complaint to be escalated in early December 2023.
33. The Council responded on the 21 March 2024. It said:
• it understood that Miss X sent in a private OT report in June 2022 requesting this be added to the EHC Plan. But it said following a referral to the NHS Occupational Health, they responded in November 2023 and were unable to identify a clinical need which required an assessment; and
• it had no evidence that the school being inappropriate had ever been raised to the team via the annual review process.

Analysis- was there fault by the Council causing injustice?

Part a of the complaint

34. Miss X said the Council failed to deliver the specialist provision in B’s EHC Plan. The timeframe I am investigating is between June 2022 and June 2023. Miss X said there was a lack of OT provided. The EHC Plan stated, ‘school will continue to seek advice from the OT service as required’. During this time there is no evidence to suggest Miss X or the school raised any direct concerns to the Council in regard to this provision not being delivered.
35. As stated in paragraph 14 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. Paragraph 14 sets out what we would expect Councils to have in place.
36. In this case there was an emergency review held in July 2022 at the request of the school as they felt the plan needed to be updated. The EHC Plan was then amended and there is no evidence of any direct concerns being raised after. Therefore, I do not find fault. Based on the information provided, I am satisfied the Council has done what we require it to.

Part c of the complaint

37. Miss X’s initial complaint to the Council was made on the 11 October 2023. The Council responded on the 24 November 2023 at stage one of its process. Miss X requested her complaint be escalated on the 1 December 2023 and the Council responded at stage two on the 21 April 2024.
38. Paragraph 18 sets out the Council’s complains policy which includes timescales for responding to complaints. There is a significant delay in responding to Miss X’s complaints. This is fault. This caused significant distress to Miss X at a time she was raising concerns for her daughter.

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Agreed action

39. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation; and
• pay Miss X £150 for the avoidable distress, time and trouble caused by the Council’s actions.
40. Within two months by training or other means ensure the relevant officers are aware of the Council's complaints policy which sets out the timescales for responding to complaints.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman