Summary: Mrs X complains the Council has not dealt properly with her daughter Y’s Special Educational Needs (SEN) and has suffered distress and loss of educational opportunity. The Council is at fault because it delayed issuing Y’s Education, Health and Care (EHC) Plan and it did not ensure all Y’s SEN provision was made. Mrs X suffered avoidable distress and Y missed SEN provision. The Council should apologise to Mrs X and Y and pay Mrs X £3,000.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal with her daughter Y’s Special Educational Needs properly because it:
• Didn’t consider historical issues raised in her complaint;
• Delayed issuing an EHCP after a tribunal order; and
• Failed to ensure SEN provision was received between June 2023 and October 2024.
2. Mrs X says she has suffered avoidable distress and uncertainty and her daughter has lost educational opportunity.

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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 an injustice, 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. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. I have investigated that part of Mrs X’s complaint about how the Council has dealt with issuing an EHC Plan and making SEN provision as specified in the EHC Plans current at those times.
9. I have not investigated any reference to historical issues before July 2023 because this is out of time and a late complaint.

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How I considered this complaint

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

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What I found

Law, guidance and policies

Special Educational Needs

12. 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.
13. Where a Council does not oppose an appeal concerning a decision not to issue an EHCP, it must issue a draft EHCP within five weeks and a final EHCP within 11 weeks. (Special Educational Needs and Disability Regulations 2014 Reg 45 (6))
14. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This 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 education, or name a different school. Only the tribunal can do this.
15. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
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).
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened.
19. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
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)  

What happened?

21. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
22. Y was first issued with an EHC Plan in 2017.
23. In June 2022, the Council completed an annual review of Y’s EHC Plan. The Council issued a final EHC Plan in December 2022. The Council refers to this as amendment 5. I will refer to this as EHCP1. Mrs X appealed to SEND Tribunal.
24. In July 2023 the Council completed an annual review of Y’s EHC Plan. Following this, in September 2023, the Council issued an updated EHC Plan for Y. I will refer to this as EHCP2.
25. In February 2024, the Council issued an updated EHC Plan for Y. The Council refers to this as amendment 6. I will refer to this as EHCP3.
26. In March 2024, The Council and Mrs X reached agreement in respect of her appeal to SEND Tribunal. The Tribunal directed that the Council should produce a final EHC Plan for Y containing amendments to her SEN provision.
27. The Council issued Y’s final EHC Plan in May 2024. I will refer to this as EHCP4.
28. Mrs X complained to the Council in June 2024. The Council partially upheld her complaint about delays to including SEN provision in Y’s EHC Plan, fully upheld her complaint about some SEN provision in her EHC Plan not being made and fully upheld her complaint about delays in issuing Y’s EHC Plan after the Tribunal.

Analysis

29. The Council partially upheld Mrs X’s complaint and accepted there was a delay in including occupational therapy (OT) SEN needs and the provision to meet the needs within EHCP1.
30. The Council fully upheld Mrs X’s complaint and accepted OT provision had not been in place. The Council stated to the Ombudsman that there was delay in making OT provision from February 2024. (EHCP3]
31. The Council fully upheld Mrs X’s complaint that it issued Y’s final EHC Plan [EHCP4] after the Tribunal deadline. I agree. This is fault by the Council. Mrs X and Y suffered avoidable distress and delay to her EHC Plan being completed. Y suffered a loss of SEN provision as a direct result of this delay.

SEN provision

32. In its response to the Ombudsman, the Council:
• accepted that Speech and Language Therapy (SaLT) SEN provision was not made until September 2023.
• accepted that OT SEN provision was not made until October 2024.
• accepted it does not know whether some activities were happening on a 1:1 or a group basis.
• said it has two ways that schools or parents/carers can make the Council aware of provision that is not/cannot be put in place. The first is through the annual review. The second is through communication with the caseworker. Once a plan is finalised, each school has a caseworker that is assigned to the school. That caseworker supports the school and all children with EHC Plans within it. Parents/carers and schools can send questions or queries to their allocated caseworker.
33. The Council provided information from annual reviews of Y’s EHC Plan in July 2023 and September 2024. The Council believe that Y was receiving the required provision.
34. It says the information from the July 2023 annual review shows that:
• Y received ‘daily SaLT sessions within phonics’ and ‘repetition and reinforcement within lessons’.
• Y received ‘Structured play sessions to encourage interaction and co-operation with peers’. The document does not state how often this provision was taking place so the Council accepts that it does not know if this was happening on a 1:1 and/or small group basis.
• Y received OT provision through daily sessions within the classroom.
• There was no indication on the annual review document that the provision needed to be added or changed at that point and no indication that there was any issue delivering the provision during this time frame.
35. It says the information from the September 2024 annual review shows that:
• Y continued to work with adult support.
• confirms that SaLT was taking place.
• Y took part in sharing social stories.
• there was no indication on the annual review document that the provision needed to be added or changed at that point and no indication that there was any issue delivering the provision during this time frame.
36. I have reviewed the annual review documents.
• Y’s school reported difficulties in delivering support in 2023.
• Parental views recorded in 2023 did raise problems with SEN provision not being made, which included:
1. No direct SaLT had been delivered in 10 months.
2. School had advised they have not delivered a number of provisions such as 1:1 support.
• Parental views in 2024 did not raise any problems with SEN provision not being made.
37. Mrs X provided the Ombudsman with annotated copies of Y’s EHC Plans highlighting SEN provision that she said had not been delivered.
38. The Council has relied on the statements of Y’s school in supporting its belief that Y received the required provision. The Council has not provided any additional specific evidence to show the elements raised by Mrs X were delivered.
39. In addition, there is no evidence following the 2023 annual review that the Council made any enquiries or investigations at the time into whether SEN provision which Mrs X queried had been delivered or not.
40. The annual review documents clearly reference some specific provision within Y’s EHC Plan. On the balance of probabilities, some of the SEN provision in Y’s EHC Plans was delivered.
41. However, the Council has been unable to provide evidence to show that all the provision Mrs X has complained about was provided. For example, 1:1 support for calming and focussing activities. The Council is therefore unable to demonstrate that all of Y’s SEN provision was fully made.
42. On the balance of probabilities, Y missed SEN provision contained in her EHC Plan, throughout the period June 2023 to September 2024, for a period of 3 and a half terms.

The Ombudsman’s Guidance on Remedies

43. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
44. I have taken into account the fact that Y missed some SEN provision, the fact that other SEN provision was clearly made, her special educational needs as detailed in her EHC Plan and comments from Mrs X in determining an appropriate remedy.

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Action

45. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the fault found. 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.
• Pay Mrs X £3,000 in respect of Y’s missed SEN provision between June 2023 and September 2024.
46. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman