Summary: Mr X complained about how the Council supported his child, Y’s, special educational needs. There was fault in how the Council failed to act when it became aware some of Y’s support was not being provided and in significant delays responding to Mr X’s complaint. The Council agreed to apologise to Mr X and pay him a financial remedy.

The complaint

1. Mr X complains about how the Council arranged support for his child, Y’s, special educational needs from 2022. He says the Council:
• failed to provide a suitable school place for Y;
• lied during a SEND Tribunal appeal; and
• failed to arrange the Occupational and Speech and Language Therapy set out in Y’s Education Health and Care Plan.
2. As a result, Mr X said Y went without some of the support they needed and Mr X was caused financial hardship. He wants the Council to reimburse the costs he incurred and pay an additional symbolic payment to acknowledge his 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
8. 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.
9. 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

10. I have not investigated how the Council decided what school Y should attend or how the Council conducted itself during the tribunal proceedings.
11. Mr X had the right to appeal the Council’s decision to name the schools it did in Y’s EHC Plans. Mr X had appealed to the Tribunal before about other Council decisions. I am satisfied it would have been reasonable for Mr X to use his appeal rights if he was not happy with the school the Council had chosen for Y.
12. Any concerns Mr X had about the Council’s conduct during previous tribunal proceedings could have been raised with the Tribunal at the time.
13. I have investigated how the Council ensured the Occupational and Speech and Language Therapy, as set out in his EHC Plan, were arranged for Y.

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How I considered this complaint

14. I considered evidence provided by Mr X and Council as well as relevant law, policy and guidance.
15. Mr X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
16. 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 found

Special educational needs

17. 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. 
18. 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)  
19. 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. 
20. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

The Council’s complaints process

21. The Council has a two stage complaints process:
• Stage one – a response from the relevant service within 20 working days.
• Stage two – a response from a senior Council officer within 20 working days, or up to 65 working days for more complex cases.

What happened

22. Mr X’s child, Y, has special educational needs. The Council issued an Education Health and Care (EHC) Plan for Y in May 2022. The plan said Y should attend School A and should also have support, including one-on-one time, with both a Speech and Language Therapist (SLT) and an Occupational Therapist (OT).
23. When the Council issued the May 2022 EHC Plan, it said School A confirmed it would be able to provide all the support set out in Y’s EHC Plan.
24. However, following a review of Y’s progress carried out by School A in the summer of 2022, Mr X complained to the Council that Y had not been receiving the SLT or OT support since they had started at the School.
25. In response to Mr X’s complaint, the Council said it had checked with the School and understood that Y was due to be seen by a SLT a week later.
26. Mr X complained to the Council again in early 2023, including about the lack of SLT and OT support.
27. Around this time the Council carried out a review of Y’s EHC Plan and issued an amended EHC Plan in February 2023. This plan said Y should continue to attend School A for the time being and should receive the same SLT and OT support. It also decided Y would attend Mr X’s preferred school, School B, from September 2023.
28. Once Y started attending School B, the SLT and OT support were put in place.
29. The Council did not provide a formal response to Mr X’s 2023 complaint until March 2024. In its response, the Council did not address the gap in support from an SLT and OT from Mr X’s original complaint. It did apologise for the distress caused by the time taken to respond to Mr X’s complaint and offered him a financial remedy to recognise that distress.
30. Mr X asked the Council to consider his complaint at stage two in April 2024. However, the Council did not send its final response to Mr X’s complaint until August 2024. The Council said it saw no reason to change its findings from its stage one response.
31. Mr X complained to the Ombudsman shortly after the Council’s final response.
32. In response to my enquiries, the Council accepted that it had not properly investigated or addressed Mr X’s concerns about the lack of SLT and OT support. It also accepts it missed this information which was included in School A’s report from the January 2023 annual review. It accepted it should have addressed this issue in January 2023 and that Y had gone without much of the SLT and OT support until September 2023, when Y started at School B.

My findings

33. The Council accepted Y went without the SLT and OT for much of the time he was at School A. It said it first knew about this in January 2023 and should have acted at that point to ensure the support was in place.
34. On the balance of probabilities, I consider the Council first knew about the lack of support in October 2022, when Mr X first mentioned this to the Council. At that point, the Council should have assured itself that the support was put in place. However, the Council has not shown that it properly looked into the issue at that time. The evidence shows the support was not then in place.
35. Before October 2022, I am satisfied the Council had reason to believe the support was in place, based on assurances from School A that it would be able to meet Y’s needs. However, once these assurances were questioned, the Council should have done more to ensure that all the support was in place.
36. The SLT and OT support was only part of Y’s special educational provision and the evidence shows Y continued to attend school and made some progress. However, that SLT and OT support was intended to address some of Y’s barriers in taken part in education. I am satisfied, on the balance of probabilities, that going without that support affected Y’s ability to fully engage with the rest of his education.
37. I am satisfied that a symbolic payment is appropriate to recognise the provision Y went without between mid-October 2022 and the end of the school year in 2023; just over two and a half terms. Since Y was able to take part in much of the other education available to him at the time, and considering the stage of Y’s education, I consider the sum of £300 per term appropriately recognises the missed support.
38. I am not, however, satisfied this lack of support caused any of the financial losses Mr X claimed. Those losses and costs were connected with Mr X’s disagreement about which school Y should attend, which I cannot investigate.
39. There were also significant delays in the Council responding to Mr X’s complaint (over a year at stage one, and several months at stage two), which it has accepted and apologised for. It has previously offered Mr X £500 to recognise the distress, time and trouble caused by those delays. I consider that to be a suitable remedy.

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Action

40. Within one month of my final decision the Council will:
• apologise to Mr X for failing to act when it knew that Y was not receiving the SLT and OT support set out in his EHC Plan while at School A;
• pay Mr X £800 to recognise the just over two and a half terms Y went without that support; and
• pay Mr X the £500 is has already offered to recognise the distress, time and trouble caused by the delays in responding to his complaint.
41. The Council should provide us with evidence it has complied with the above actions.
42. I would normally have also made service improvement recommendations for how the Council verified that therapies were in place and how it responds to complaints in a timely way. However, since the events I have investigated, the Council has developed action plans to address these issues. Therefore, I do not consider I need to make any further service improvement recommendations.

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Decision

43. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman