Summary: We have found fault with the Council for failing to secure the therapy set out in Mrs X’s daughter’s Education, Health and Care Plan. This caused her to miss out on the therapy she needed. The Council has agreed to apologise and make a symbolic payment to Mrs X in recognition of the missed provision.

The complaint

1. Mrs X complained the Council failed to secure therapeutic provision detailed in her daughter’s (Y’s) EHC Plan for over a year. She said this affected Y’s progress, confidence and social engagement.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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 Tribunal in this decision statement.
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)

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What I have and have not investigated

6. I have not investigated the content of Y’s EHC Plan. Mrs X can and has appealed this.
7. I have investigated up to August 2024 when Mrs X brought her complaint to us.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs 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 found

Law and guidance

EHC Plans

10. 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.

Maintaining the EHC Plan

11. 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)
12. 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.

What happened

13. Mrs X’s daughter, Y has SEN and has had an EHC Plan since 2022. Y attends a specialist school.
14. In April 2024, the Council carried out an annual review of Y’s EHC Plan. The key action points included ‘prioritise speech and language therapy (SALT)’ and to ‘contact an independent occupational therapist (OT)’.
15. The following month, Mrs X complained to the Council. She said the Council had failed to secure SALT and OT as set out in Y’s EHC Plan for a year. She said at the annual review, the school said Y was on a waiting list.
16. The Council said that prior to the annual review, the school had assured it that there were no difficulties meeting the provision set out in Y’s EHC Plan. Therefore, it considered that it had met its Section 42 duty by securing the provision set out in Y’s EHC Plan.
17. Following Mrs X’s complaint, the Council asked the school to prioritise Y’s access to SALT to OT.

My findings

18. The law says that if the Council asks another organisation to make the provision and that organisation fails to do so, the Council remains liable. Therefore, even though the Council believed in good faith that Y’s specialist school was providing SALT and OT provision, Y did not receive it, and therefore the Council was ultimately at fault.
19. The Council did not ask the school how/when it was going to deliver the SALT and OT. If the Council had asked for more information from the school, it would have been evident that there was a long waiting list for therapy and Y would not be receiving provision for some time.
20. This would have prompted the Council to secure provision elsewhere to ensure Y received the therapy she needed.
21. The Council was at fault for failing to secure SALT and OT for Y between May 2023 (when Y started at the school) and August 2024 (when Mrs X brought her complaint to us).
22. This caused Y to miss out on the therapy she needed and was set out in her EHC Plan.
23. The Council has agreed to make a symbolic payment in line with our guidance on remedies in recognition of the missed provision.

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Agreed action

24. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for failing to secure SALT and OT for her daughter.
2. Pay Mrs X £3000 in recognition of the missed SALT and OT provision as the shortfalls cannot be addressed as Y is finishing school.
3. Demonstrate how, in the future, the Council will ensure that SEN provision is being actively delivered by an organisation.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. The Council was at fault for failing to secure SALT and OT as set out in Mrs X’s daughter’s (Y’s) EHC Plan. This caused Y to miss out on a year of therapy. The Council has agreed to apologise and make a symbolic payment to acknowledge the missed provision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman