Summary: Mr X complains about the Council’s failure to provide support for his son’s special educational needs as specified in his Education, Health and Care Plan. We found the Council to be at fault because there was delay in providing speech and language therapy and funding for a teaching assistant. To remedy the injustice caused, the Council has agreed to apologise, make a symbolic payment to acknowledge the lost provision and take action to improve its service.

The complaint

1. Mr X complains about the Council’s failure to provide support for his son’s special educational needs. In particular, he complains about the failure to provide:
1. a suitably qualified 1:1 teaching assistant; and
2. speech and language therapy (SALT).
2. He says the lack of support affected his son’s development and caused Mr X to lose confidence in 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. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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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What I have and have not investigated

8. I have investigated what happened from October 2023 to August 2024. This is from when the SEND Tribunal issued its order following the hearing in September 2023 up to when the Ombudsman agreed to investigate his complaint.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered the written information he provided.
10. I considered the Council’s response to my enquiry letter, including its case records.
11. I considered the relevant law and guidance.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before I made my final decision.

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What I found

Special educational needs

Education, Health and Care Plan

13. A child or young person with special educational needs (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.
14. We cannot direct changes to the sections about their needs (section B), education (Section F), or the name of the educational placement (section I). Only the Tribunal or the council can do this.
15. Parents/young people have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in the plan, or the fact that no school or other provider is named.

Failure to secure provision

16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Annual reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
21. The council must issue the amended final EHC Plan within 12 weeks of the review meeting.

Early reviews

22. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs.
23. The council does not have to agree to this request and there is no statutory right of appeal of this decision.

What happened

24. I have summarised below the key events: this is not intended to be a detailed account.

Background to the complaint

25. Mr X’s son (Y), has a diagnosis of autism and other SEN, including delayed speech. He is of primary school age. In February 2023, the Council issued an EHC Plan that specified a mainstream primary school in Section I. Mr X appealed this decision to the SEND Tribunal. In October 2023, the SEND Tribunal ordered the Council to name School P, a special school, instead.
26. During the appeal hearing, School P explained it would need to recruit a teaching assistant (TA) to provide 1:1 support for Y because of his level of need. School P estimated this would take about eight weeks. In the meantime, a TA would need to be “borrowed” from existing staff resources. This would create a challenge to the school and other children.
27. In October 2023, the Council issued a new EHC Plan (the 2023 Plan) that named School P. Y started attending School P in November 2023.
28. Within a few weeks, Mr X raised concerns about the support being provided to Y in two areas. He made a formal complaint in December 2023.

SALT

29. Mr X was of the strongly held belief that Y needed direct therapy instead of just guidance to school staff. Because of a delay in obtaining an up-to-date SALT assessment, Mr X commissioned one privately.
30. This recommended direct provision of one hour per week. In December 2023, Mr X requested an emergency review.
31. This was held on 25 January 2024 and led to Y’s EHC Plan being amended in June 2024 (the 2024 Plan). This included direct SALT for one hour per week. This started in the autumn term.

1:1 TA

32. The October 2023 Plan stated, “Y needs adult support at all times on the basis of no more than 1:2 with daily sessions on a 1:1 basis for targeted learning” and “Y to have 1:1 support for teaching and learning activities”.
33. School P recruited a TA (TA1) to work specifically with Y via an employment agency from February 2024 to July 2024. Prior to this, he was supported within existing staff resources. Mr X disputes this and had several concerns about about TA1. He says;

• when he occasionally visited School P, he did not witness Y with a TA;
• School P refused to provide the name of the TA allocated to his son and so was unable to have any dialogue with her about Y’s progress; and
• Y swallowed a toy during school time. Mr X says this would not have happened had Y been supervised on a 1:1 basis.

34. Within a month of Y starting at School P, Mr X raised concerns with the Council about lack of 1:1 TA support.
35. Another TA (TA2) was appointed for the start of the autumn term 2024.

The Council’s position

36. In response to Mr X’s complaint and the Ombudsman’s enquiries, the Council’s position is summarised below.

• Y did not receive 4 weeks’ worth of direct SALT at the end of the summer term 2024.
• Mr X was aware there would be a delay caused by School P having to recruit a TA following the SEND Tribunal order being issued. This is because Mr X was present when the school representative explained this to the Tribunal.
• The Council provided funding to allow School P to recruit a dedicated TA from January 2024. This was just over the eight-week time frame discussed at the SEND Tribunal hearing. Prior to this Y was supported by TAs already employed by School P.
• School P confirmed both TA1 and TA2 met the standard qualification requirements for a teaching assistant.

Analysis

37. I will consider Mr X’s two areas of complaint below.

SALT

38. The October 2023 Plan did not include direct SALT. For this reason, the Council was not at fault for not providing this from when Y started attending School P.
39. It took approximately two months for an emergency review to be arranged after Mr X alerted the Council to concerns about lack of SALT. Mr X submitted a private SALT report in support of his request.
40. I consider this was a reasonable timeframe for the Council to have made enquiries of School P and for the school to arrange the meeting. There was no obligation to provide SALT while the review process was ongoing.
41. After the review, the Council promptly notified Mr X of its intention to amend the EHC Plan. The law says councils have 12 weeks to issue an amended final EHC Plan from the review date. This meant the final plan should have been issued by 18 April 2024. It was not issued until 24 June 2024, approximately eight weeks late. I have seen no justifiable reason for this delay.
42. This delay was fault. This delay caused an injustice to Y because he was effectively denied approximately three months of SALT. This injustice requires a remedy (below).

1:1 Teaching Assistant

43. The case records show that between November 2023 and February 2024, Y did not have a TA, employed to work only with him. Instead, School P says it managed within its existing resources.
44. The law is clear that councils have a duty to provide what is specified in the EHC Plan. In this case, the 2023 Plan did not specify Y must have to have his own TA. It just stated Y should have “1:1 support for teaching and learning activities”.
45. However, there was a clear understanding between all parties that a TA would be recruited specifically to work with Y, and this would take up to eight weeks to arrange. This discussion about recruitment and funding was recorded in SEND Tribunal order.
46. Because of this, Mr X expected a dedicated PA to be in post for the start of the spring term at the latest. This did not happen because the Council did not agree funding until 21 December 2023. This did not allow time for School P to recruit, instead, it had to use an employment agency. Even this meant TA1 did not start until February 2024.
47. Both the Council and School P was aware from October 2023 that funding would have to be agreed for the recruitment process to start. The Council has accepted it took too long to arrange funding for the new post. This delay was fault and had a direct impact on when a dedicated TA was available.
48. The extent of the injustice to Y from this delay is unclear. School P has maintained its position that a TA was available for Y at all times from existing resources. Mr X disputes this because he says in a class of 12 pupils, there were three teachers and one TA. This was a ratio of 3:1 support, not 1:1.
49. It is not possible to for me to determine whether one member of those four staff was with Y continuously. For this reason, I cannot make a finding that Y did not receive 1:1 supervision at all times.
50. However, there was avoidable delay in the recruitment of TA1 caused that uncertainty for Mr X about whether Y was being properly supervised. This uncertainty is an injustice that requires a remedy.
51. Mr X also complaints about the quality of TA support, specifically TA1. The 2023 Plan stated, “Y needs to be supported by staff that are trained and/or experienced in working with children with social communication difficulties and learning needs”. School P has confirmed TA1 has appropriate qualifications and experience to fulfil the role. It had no concerns about TA1 while she was working with Y and she was observed working with Y. In the absence of any independence evidence to support Mr X’s opinion about TA1, I do not find fault.

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Agreed action

52. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Mr X.
2. Pay Mr X £300 as a symbolic payment to acknowledge the failure to provide direct SALT between April and July 2024.
3. Pay Mr X £100 as a symbolic payment to acknowledge the delay in arranging funding for a TA following the SEND Tribunal order.
4. Remind relevant staff of the need to produce final EHC Plans within 12 weeks of a review meeting.
5. Remind relevant staff of the need to ensure funding arrangements are actioned promptly following a SEND Tribunal.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have found the Council to be at fault and the Council has agreed to action my recommendations to remedy the personal injustice to Mr X and improve its service. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman