Summary: We found the Council was at fault when it failed to secure the provision set out in an Education, Health and Care Plan it issued following a Tribunal hearing. This led to S missing the support she needed and caused her mother, Mrs X, distress, and frustration. The Council agreed to our recommendations set out to remedy the injustice its actions caused to Mrs X and S.

The complaint

1. Mrs X complains that following a SEND Tribunal decision in December 2022 the Council failed to:
• secure the provision included in section F of her daughter, S’s, EHC Plan;
• communicate effectively with her about when the provision would start; and
• respond to her corporate complaint in line with its complaints policy.
2. Mrs X says this caused her avoidable distress and meant that S missed out on crucial support she needed and was entitled to as part of her EHC Plan. Mrs X also wonders what long term impact the lack of therapies had on S and if it is even possible to provide the therapies now as she is about to leave education.
3. Mrs X would like the Council to:
• put all the necessary therapies and provision for S in place immediately;
• apologise for not securing this in time for S following the SEND Tribunal; and
• make service improvements so the Council can ensure that this does not happen in the future.

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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. 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.
6. 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.
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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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs X and the Council have 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

SEND Tribunal

10. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
11. Where a SEND Tribunal orders the Council to amend the special educational provision set out in the EHC Plan, the Council must issue the amended EHC Plan within five weeks of the order being made.

Education, Health, and Care Plans

12. A child with special educational needs may have an EHC Plan. The Plan 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 education or name a different school. Only the SEND Tribunal can do this.
13. The Council is responsible for securing the set out special educational provision for the child. This means making sure that arrangements set out in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process. These duties are non-delegable, and a council cannot discharge its duty by showing it tried but failed to put the support in place.

Council’s complaint procedure

14. The Council’s complaint procedure has two stages. The Council says the service area being complained about will respond to stage one complaints in 10 working days. If the complainant is unhappy with the outcome the Council will review its original response and provide a final answer within 20 working days. Additionally, the Council says that it will keep complainants informed of progress and let them know if there are any delays in the process.

What happened

15. In December 2022 the Council and Mrs X attended a SEND Tribunal hearing. Later that month the Tribunal issued a decision and said the Council should amend section F of S’s EHC Plan as per its instructions.
16. In mid-January 2023 the Council issued S’s final amended EHC Plan following the SEND Tribunal’s decision. The Plan said that S would get:
• one-hour weekly Speech and Language Therapy (SALT) sessions;
• one-hour weekly Occupational Therapy (OT) sessions;
• Emotional Literacy Support Assistant (ELSA); and
• support form appropriately trained staff.
17. There are no records of what action the Council took between January 2023 and May 2023 to ensure that S received the abovementioned provision from her EHC Plan.
18. In late April 2023 Mrs X complained to the Council. She said that despite the Tribunal’s decision S was still not getting the support that she needed and that was named in the section F of her Plan.
19. Between May and June 2023 S received some direct OT support.
20. In late September 2023 the Council issued its response to Mrs X’s complaint. It apologised for the delay in responding to the complaint, explained what funding it had secured for S’s therapies and told Mrs X that it would update her in mid-October 2023.
21. In October the Council held an annual review of S’s EHC Plan. During the review Mrs X raised her concerns that despite having received some OT provision in the first half of 2023, since the new school year S did not get any OT, despite this being written in her EHC Plan. Additionally, she complained about the lack of SALT, so much so that there was no SALT report to consider during the annual review.
22. Mrs X was unhappy about the Council’s response and asked it to consider her complaint further.
23. In mid-December 2023 the Council issued its final response to Mrs X’s complaint. It said that it was not responsible for the delay in securing S’s provision and accepted that its communication with Mrs X could have been better.
24. Mrs X remained unhappy about the Council’s actions and response to her complaint and in February 2024 she approached the Ombudsman.

Analysis

Provision from section F of S’s EHC Plan January 2023 and February 2024

25. The law says that following a SEND Tribunal hearing the Council needs to issue a final amended EHC Plan within five weeks of the Tribunal’s Order.
26. The SEND Tribunal issued its decision in early December 2022, which means the Council should have issued S’s final amended EHC Plan by mid- January 2023. The Council issued S’s final amended EHC Plan at the end of January, which means there was a delay of five working days. This is fault.
27. However, we consider the delay was not such that it caused significant avoidable distress to Mrs X and S.
28. From the moment the Council issued S’s final EHC Plan it was responsible for ensuring S received the provision from section F. The Council confirmed that:
• S did not get any SALT or OT between January 2023 and mid-May 2023. This is fault.
• It agreed to fund S’s Social communication programme and ELSA in February 2023, but it had no evidence of when and how S received this. This is fault.
29. S then accessed OT between May and early June 2023, however after this the provision stopped.
30. Mrs X told us that in October 2023 she raised with the Council that S continued to struggle and she needed the OT and SALT from her EHC Plan.
31. We have seen no evidence from the Council to suggest that S accessed any OT following June 2023. This is fault.
32. S did not get any SALT between January 2023 and February 2024 when Mrs X complained to us. This is fault.
33. In its December 2023 complaint response to Mrs X the Council said that it was not at fault for the delay in implementing S’s EHC Plan provision. Although we recognise the Council has no control over the availability of therapists, it failed to show us what action it took in early 2023 to make sure the provision was in place sooner than May 2023. Additionally, Mrs X had found a therapist with availability, but the Council failed to release the funding in time for S to be able to access the OT.
34. Additionally, Mrs X told the Council that she was concerned that S was not working with appropriately trained staff, as her maths tuition was delivered by another student. The Council did not check this and did not address this in its responses to Mrs X’s complaint. This is fault.
35. We consider the Council was at fault for the delay in securing the therapies from S’s EHC Plan it issued in January 2023. We cannot say the extent of impact this had on S’s opportunities to achieve to the best of her abilities, but this caused Mrs X avoidable frustration and uncertainty. It also meant that an already vulnerable young adult did not have access to the therapies that she needed.
36. We recommend the Council:
• pays Mrs X £400 to recognise the avoidable uncertainty the delays in implementing S’s OT provision and lack of SALT and ELSA caused her;
• pays Mrs X, on behalf of S, a further £600 to recognise the injustice she was caused by lack of SALT, ELSA and working with appropriately trained tutor.

Complaints handling and communication standards

37. The Council agreed that it was at fault for the delay in its stage two response to Mrs X’s corporate complaint.
38. It additionally agreed that it should have managed better its communications with Mrs X about her concerns, but it did not. This is fault.
39. This caused Mrs X avoidable time and trouble in chasing the Council for updates. Additionally, it caused Mrs X avoidable frustration as the Council’s delays meant she was unsure of when it would answer her concerns.
40. Because of this, we recommend the Council pay Mrs X £200 to recognise the avoidable time and trouble and uncertainty its actions caused her.
41. In 2024 we made various service improvements recommendations that also address the findings of this draft decision. Because of this, I have decided not to make further service improvement but allow the Council the time to implement the changes that it has already committed to this year.

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Agreed action

42. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and S for its failure to provide S with the therapies from her EHC Plan between January 2023 and May 2023 and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mrs X, on behalf of S, £400 to recognise the uncertainty about the effect the four-month delay in implementing OT and lack of SALT and ELSA had on S;
• pay Mrs X £600, on behalf of S to recognise the injustice she was caused by lack of SALT, ELSA and working with appropriately trained tutor caused her; and
• pay Mrs X £200 to recognise the avoidable time and trouble and frustration Mrs X spent chasing the Council to answer her complaints and communications.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. We found the Council was at fault for the delay in securing S’s provision named in section F of her EHC Plan. The Council accepted our recommendations on what it should do to remedy the injustice its actions caused to S and Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman