Summary: Miss B complained the Council failed to comply with a tribunal order which means her child has not received the necessary special educational provision. We find the Council at fault for delays in issuing the amended Education, Health and Care Plan and providing special educational provision. To remedy the injustice caused, the Council has agreed to apologise to Miss B and provide the special educational provision detailed in the Plan.

The complaint

1. Miss B complained the Council failed to comply with a tribunal order which was issued in January 2024. She also complained the Council provided incorrect information in its complaint response and she had to chase the Council to provide complaint responses. Miss B says her child, X, is struggling to make progress without the correct occupational therapy support and his mental health has been impacted. Miss B also says the Council’s actions have caused her distress which has impacted her medically and this has impacted her family. Miss B would like the Council to tell the truth and ensure no other families experience this situation.

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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. 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)
4. 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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How I considered this complaint

5. I spoke with Miss B and considered the information she provided.
6. I made enquiries of the Council and considered its response.
7. Miss B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Legal and administrative background

8. 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. 
9. 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)  
10. 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.
11. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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; and
• a decision to cease to maintain an EHC Plan.

12. Following a SEND Tribunal decision, a Tribunal Order will be issued. Where the order requires the Council to amend the special educational provision specified in the EHC Plan, the Council should issue the amended EHC Plan within five weeks of the order being made (Section 44(e) Special Educational Needs and Disability Regulations 2014)

Council’s complaint policy

13. The Council has a published complaint policy which sets out a three stage process.
14. The Council will initially attempt to resolve complaints informally. If this cannot be achieved the complaint can be escalated to stage one.
15. At stage one the Council should acknowledge the complaint within three working days and provide its response within 15 working days.
16. If the complainant remains dissatisfied the complaint can be escalated to stage two. The Council aims to respond to stage two complaint within twenty working days.

What happened

17. Following a parental appeal against the content of X’s EHC Plan, a Tribunal order was issued in January 2024. In accordance with the SEND regulations 2014, the Council should have issued the amended EHC Plan by the beginning of March 2024.
18. The Council issued X’s amended EHC Plan in April 2024, approximately 5 weeks after the statutory deadline. The Plan stated a school based sensory assessment would be completed by an occupational therapist (OT) within the spring term.
19. The school based sensory assessment did not take place until June 2024. This is approximately a three month delay. Section F of X’s EHCP says he should receive 26 occupational therapy sessions. The occupational therapy provision did not start until September 2024.
20. In March 2024 Miss B submitted a complaint to the Council about the OT assessment delay. After failing to resolve the complaint informally, Miss B requested the Council escalate her complaint to stage one of its complaint process. The Council provided a response 16 working days later.
21. Miss B escalated her complaint to stage two of the Council’s complaints process. The Council issued a stage two complaint response five days later which incorrectly told Miss B that the school based sensory assessment had taken place.

My findings

22. There was a delay in the Council issuing X’s final EHCP. This is fault which caused X and Miss B frustration and uncertainty.
23. There was a delay in the school based sensory assessment being completed. There was also a delay in the occupational therapy provision starting. This is fault which caused X and Miss B frustration and uncertainty.
24. In its stage two complaint response the Council incorrectly told Miss B the OT assessment had taken place. This is fault which caused Miss B uncertainty.
25. The Council issued a stage one response one day over its response deadline. I do not consider this caused Miss B any significant injustice.

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Agreed action

26. Within one month of the final decision the Council will:
• Apologise to Miss B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Provide a plan which shows how it will have careful regard to any further recommendations made by the occupational therapist, specifically those that are required because of the delays identified. This plan should also set out how the Council will ensure X will receive all 26 of his occupational therapy sessions before his next annual review.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman