Summary: We upheld Ms X’s complaint about a failure to secure special educational provision in her child Y’s Education, Health and Care Plan. This caused a loss of educational provision, avoidable frustration, uncertainty and time and trouble. The Council will apologise, provide a copy of the action plan setting out how Y will receive catch-up provision, provide a copy of a specialist assessment, and make Ms X a payment of £200 to reflect her avoidable distress and time and trouble.

The complaint

1. Ms X complained the Council failed to secure special educational provision in her child Y’s Education, Health and Care (EHC) Plan. The provision includes Speech and Language Therapy (SLT), Occupational Therapy (OT) and an assessment for Attention Deficit Hyperactivity Disorder (ADHD).
2. Ms X said Y has lost special educational provision as a result. And she (Ms X) has suffered avoidable distress and time and trouble.

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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. 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)
5. 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

6. I considered the complaint to us, the Council’s responses and documents referred to in this statement.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I have and have not investigated

8. The period I have investigated is October 2023 to June 2024. The later date is when Ms X complained to us.

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What I found

Relevant law and guidance

9. 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, including Section F which sets out the child’s special educational provision (SEP).

10. The Council has a duty to secure the SEP in an EHC Plan (Children and Families Act 2014, section 42)

What happened

11. Y has SEN and an EHC Plan. Y’s most recent Plan is dated October 2023 and was issued after a Tribunal. Section F says:
• Training must be delivered by a Speech and Language Therapist (SLT) with practical experience in Blank Levels (one hour minimum) – more than one session may be required to reach all the people working with Y.
• The SLT will devise a bespoke social communication programme. The sessions will be carried out in a quiet setting by a trained teacher in a 1:1 or small group with no more than three peers. This will be twice weekly for 30-45 minutes.
• A qualified and experienced SLT will need to devise the programme and train the teaching staff to carry it out training must be (minimum two hours) - more than one session may be required to reach all the people working with Y. Training will be for all staff.
• Y will have a consultative model of therapy with a review session of 45-60 minutes where the SLT re-sets the targets of the programme for the following six weeks with an additional 45 minutes for the SLT to liaise with the teaching staff in her class and parents each half term by a qualified and experienced Speech and Language Therapist with knowledge and experience with autism
• 3 x 1 hour training on Language of Learning if not familiar (a minimum of one hour) and a social communication programme and the Zones of Regulation (minimum of 2 hours).
• 3-4 hours each year to reassess, write report(s) and attend the annual review
• Termly review of sensory provision by an OT trained in sensory integration to level 3 (3 hours a visit)
• Y’s 1 to 1 support should have been trained by an OT.
• Y should be assessed for ADHD (Attention Deficit Hyperactivity Disorder)
12. Ms X complained to the Council using both stages of its two-stage complaint procedure. She raised the same issues as in her complaint to us. I have summarised the main points in the Council’s responses below:
• Y’s school had referred her to an OT and SLT provider in January 2024; there was a delay, but staff training had started and staff were assessing Y and would implement strategies after Easter.
• SLT had started already.
• The Council would provide additional funding to school for the missed term and a half of provision to increase OT and SLT input during Year 6. The case officer would liaise with school regarding an action plan for the additional provision from the providers and would ensure this was ready for the annual review in June.
• The Council would also offer £100 to reflect Ms X’s time and trouble complaining.
• The Council had not yet arranged an ADHD assessment, but it would do so.
13. Unhappy with the Council’s responses to her complaint, Ms X complained to us in June 2024. The Council had not completed the ADHD assessment at the time she contacted us. This has since been done.

Findings

14. The Council is at fault. It failed to secure all the SEP in Section F of Y’s EHC Plan for about two terms. This is not in line with Section 42 of the Children and Families Act 2014 and is fault.
15. The Council has offered to put in place catch-up provision for SLT and OT. This is an appropriate remedy for Y’s injustice (missed SEP). As part of the second stage response, the Council said it would draw up an action plan detailing exactly how the catch-up provision would be delivered.
16. The Council also said in the stage two response that it would organise an ADHD assessment. My view is this is an appropriate remedy for Y’s injustice.
17. The Council offered a payment of £100 for Ms X’s time and trouble. This does not fully reflect her injustice. Ms X has also suffered avoidable distress (frustration and uncertainty) about the outcome of the ADHD assessment, which should have been secured promptly in 2023 when the EHC Plan was issued after the Tribunal.

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Agreed action

18. Within one month, the Council will:
• Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Provide us with a copy of its action plan which should specify delivery of Y’s catch-up/missing OT and SLT provision.
• Provide us with a copy of the ADHD assessment.
• Make Ms X a payment of £200 to reflect her avoidable distress, uncertainty and time and trouble (this is the total payment recommended, including the £100 already offered by the Council in its second-stage response).
19. The Council should provide us with evidence it has complied with the above actions.

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Final decision

20. We upheld Ms X’s complaint about a failure to secure special educational provision in her child Y’s Education, Health and Care Plan. This caused a loss of educational provision, avoidable frustration, uncertainty and time and trouble. The Council will apologise, provide a copy of the action plan setting out how Y will receive catch-up provision, provide a copy of a specialist assessment, and make Ms X a payment of £200 to reflect her avoidable distress and time and trouble.
21. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman