Summary: Mrs X complained the Council failed to ensure her child, Y received therapy provision in line with their Education, Health and Care (EHC) Plan between November 2022 and February 2024. The Council was at fault. It failed to ensure Y received the therapy provision and failed to carry out sufficient oversight or investigation in response to Mrs X’s concerns. The Council agreed to make payments to Mrs X to acknowledge Y’s loss of provision and for the distress caused to her.

The complaint

1. Mrs X complained the Council failed to ensure her child, Y received therapy provision in line with their Education, Health and Care (EHC) Plan between November 2022 and February 2024. She also complained the Council delayed responding to her complaint about this matter.
2. Mrs X said Y’s loss of therapy provision during this period impacted on their education and contributed to Y no longer being able to attend a school environment. It also caused Mrs X distress.

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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. 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.
5. 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)
6. 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 have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. Although part of Mrs X’s complaint to us is late and I am satisfied this is because the Council delayed providing the stage two complaint response. Had the Council responded in line with its published timescales Mrs X would likely have complained to us much earlier. I have therefore investigated from November 2022 until February 2024.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

11. 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 which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
12. 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).
13. 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.

Complaints handling

14. The Council’s website sets out how it handles complaints and the timescales for providing a response.
15. At stage one of the complaints procedure the investigating officer is allowed 20 full working days to investigate the complaint.
16. At stage two of the complaints procedure a senior officer will review the complaint and provide a response within 25 full working days.

What happened

17. Mrs X has a child, Y who is of primary school age. Y has special educational needs which impact on their ability to communicate effectively. Y also suffers from anxiety and has struggled historically to attend school. Following a successful appeal to the SEND tribunal during 2022, the Council issued Y with an EHC Plan in November 2022.
18. Y’s EHC Plan named a mainstream primary school (School 1) in Section I of the EHC Plan. Section F of the EHC Plan outlined the specialist provision Y was entitled to. This included the following Occupational Therapy (OT) and Speech and Language Therapy (SALT) provision:
• Social communication programme carried out by a trained individual twice weekly for 30-45 minutes.
• Emotional literacy support for at least 40 minutes a week on a one to one basis.
• Access to a sensory diet devised by a qualified OT. This should be revised twice a year with training offered to school staff. This required 4.5 hours of OT time per year (1.5 hours each term).
• SALT programme developed by a qualified and experienced therapist. A review session of 45-60 mins with an additional 45 minutes for the therapist to liaise with staff and parents each half term.
• 5 x 1 hour training sessions by a qualified and experienced SALT with practical knowledge of selective mutism.
19. Records show Mrs X first contacted the Council after the Plan was issued in December 2022 and asked it to check provision was in place. She said Y was struggling at School 1 and Mrs X was unclear about whether the provision was being delivered in line with Section F.
20. In February 2023 Mrs X met with the School and Y’s keyworker from the Council. Following the meeting School 1 sent correspondence to Mrs X and Council officers outlining that some of Y’s provision was not being met. The email outlined that therapy provision was either not in place or not being fully met.
21. Mrs X met with School 1 in April 2023 to discuss the therapy provision which was not in place or being provided. Records indicate that the Council had not provided School 1 with sufficient funding to put in place the OT and SALT provision as outlined in Plan.
22. In July 2023 School 1 held an emergency annual review of Y’s EHC Plan. Records show School 1 had redirected funding to secure a consistent one to one teaching assistant to Y. This meant therapy provision was not being met due to the low level of funding. Mrs X informed the Council.
23. Mrs X said the Council agreed in August 2023 to increase Y’s support and pay for a private SALT and OT. Mrs X contacted the Council in November 2023 as this was still not in place. The Council officer said Mrs X should discuss Y’s provision concerns at the forthcoming annual review.
24. Mrs X complained to the Council in November 2023 about the failure to ensure Y received the therapy provision in their EHC Plan. The complaint outlined that the following provision was not being met.
• Social communication programme – not in place or provided
• SALT programme – not in place or provided
• SALT review sessions – one visit in July 2023 but no other visits.
• 5 x 1 hour training sessions – only one hour session provided
• Sensory diet – one session provided in September 2023 but no others
• Emotional literacy support – not provided.
25. Mrs X said there was a lack of funding in place and there appeared no plans for the Council to put funding in place, meaning Y continued to miss out on the therapy provision. The Council responded at stage one of the complaints process in January 2024. It broadly stated that its view was the provision was in place and being delivered by School 1.
26. Mrs X escalated her complaint to stage two of the complaint procedure a few days later in mid-January 2024. She referred the Council to the specific provision as outlined in paragraph 24 explaining what was not in place or being delivered.
27. Mrs X says Y stopped attending School 1 in February 2024. She says the major contributing factor was the lack of therapy provision. Mrs X said without the support from OT and SALT as outlined in the Plan it meant Y struggled in a mainstream environment and could no longer attend.
28. The Council responded to Mrs X at stage two of the complaints procedure in July 2024, 133 working days after her escalation. The Council did not uphold her complaint. It said it provided funding for SALT and OT and understood School 1 was implementing it and arranging the sessions.
29. Mrs X remained unhappy and complained to us. Mrs X said she has already made a further complaint to the Council about Y’s lack of provision since February 2024 when they stopped attending school.

The Council’s response to our enquiries

30. We asked the Council to explain and provide supporting evidence showing Y received the therapy provision in their EHC Plan. We also asked it to show how it investigated and provided oversight in response to concerns raised by Mrs X in early 2023 about the lack of funding and that School 1 was not delivering Y’s therapy provision. The Council provided no specific answers to our questions or any further supporting evidence on top of its complaint responses.

My findings

31. I have considered Y’s loss of therapy provision set out in section F of the EHC Plan between November 2022 and February 2024 while they attended School 1.
32. There is evidence showing Mrs X raised concerns about the lack of therapy provision and there is also evidence showing School 1 told the Council that funding and therapy provision for Y was not in place. It is the Council’s legal duty to ensure provision in an EHC Plan is in place and delivered. It is a non-delegable duty and its responsibility cannot just be passed to the School.
33. There is no evidence showing the Council carried out any oversight or investigation following Mrs X telling the Council of concerns in 2023. That is fault. The Council has not provided us with any other supporting evidence either.
34. On balance, Y did not receive all the therapy provision in their EHC Plan as outlined in Section F between November 2022 and February 2024 which is fault. This impacted on Y’s education and likely contributed to them struggling to engage in learning and ultimately struggling to attend School 1 after February 2024. It also caused Mrs X and the wider family distress.
35. The Council’s complaint handling was also poor. It delayed providing a stage two response, taking 133 working days to provide a response instead of the 25 working days outlined in its policy. That was fault and Mrs X caused unnecessary time, trouble and frustration.
36. Since the scope of this complaint, we have found similar faults with this Council and made service recommendations for it to have systems in place to check and investigate concerns that EHC Plan provision is not in place, including staff training. We have also recommended it make improvement in its complaints handling. We will monitor compliance of these service improvements through our case work. I have therefore not made any further service improvement recommendations in this case.

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Action

37. Within one month of the final decision the Council agreed to take the following action:
• Apologise to Mrs X and pay her £250 to recognise the distress caused to her by the failure to ensure Y’s received therapy provision in line with their EHC Plan and for the time and trouble she was caused by its significant delay in complaints handling. 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 I have recommended.
• Pay Mrs X £1750 to acknowledge Y’s loss of therapy provision in line with their EHC Plan between November 2022 and February 2024. This amount takes into account Y received other aspects of education, including one to one support, and is in line with our guidance on remedies.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice and the Council agreed to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman