Summary: Mr X complained the Council did not secure the special educational provision listed in his child’s, Y’s, Education Health and Care Plan. We find the Council failed to secure speech and language therapy and occupational therapy it should have, and had poor complaint handling. This caused injustice in the form of missed educational provision, distress and time and trouble. The Council agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mr X complains about the Council’s handling of his child Y’s Education Health and Care (EHC) Plan. In particular he complains the Council failed to:

• Secure speech and language therapy (SALT) and occupational therapy (OT) listed in section F of Y’s EHC Plan.
• Provide timely responses to his complaints.

2. Mr X said the missed provision meant Y’s development went backwards, and caused him distress, frustration and time and trouble in trying to resolve the matter.

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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. 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)
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. I have decided to investigate from 27 February 2023. That was the date the Council issued Y’s EHC Plan that was in force when Mr X complained to us. Part of that period occurred more than 12 months before Mr X complained to us and is therefore late. I have decided there is evidence of ongoing injustice that commenced when the EHC Plan was issued and that is a good reason to start the investigation from that date.
8. I have investigated what happened until 15 November 2024 because that was the date the Council provided Mr X its final complaint response.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr 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

Relevant law and guidance

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 F: The special educational provision needed by the child or the young person. 

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. 

What happened

14. Below is a brief chronology of key events including some relevant background. It is not intended to show everything that happened.
15. Y has had an EHC Plan since 2019. He has attended the same special school since then. A mediation agreement was reached in 2020. The agreement included the Council updating Y’s EHC Plan with information from a SALT report and an OT assessment.
16. The Council issued a Final Amended EHC Plan on 27 February 2023.
17. Section F of the EHC Plan detailed the special educational provision that Y should have received. It included the following special educational provision required for “communication and interaction outcome(s)”:

• A speech and language therapy programme devised by a speech and language therapist implemented by key staff throughout the day.
• The speech therapist will work with Y for two hours every half term, which will consist of direct and indirect work including liaison with school staff and parents.
• A further fifteen bullet points detailing specific things the school staff should do.

18. Section F also included the following special educational provision “required for physical and sensory outcome(s)”:

• An occupational therapy programme devised by an occupational therapist and implemented by school staff consistently on a daily basis.
• The school to consistently implement a toileting programme as advised by the occupational therapist in liaison with parents.
• A further twenty bullet points detailing specific things the school staff should do. Only one of the bullet points mentions toileting in the context of an example of self-help skills.

19. In April 2023 and March 2024 Y’s school conducted reviews of Y’s EHC Plan. Mr X was involved in the reviews. Both review reports record Mr X saying that toileting remains a big concern. Mr X said he challenged missing OT visits and assessments at every review meeting. The Council decided not to amend Y’s EHC Plan following the reviews.
20. At the beginning of July 2024 Mr X raised a formal complaint with the Council. He complained Y was not receiving the special educational provision in the EHC Plan. He said Y was not receiving an OT programme or toileting programme.
21. Mr X also said a speech therapist had not worked with Y for two hours every half term before the appointment of the therapist at the school in January that year.
22. The Council responded to Mr X’s complaint. It said the school was consistently implementing a toileting programme in line with Section F of the EHC Plan. It said it appeared to have worked because the school said Y was toilet trained at school.
23. Mr X was unhappy with the Council’s response. He said the claim an occupational therapist had developed a programme for Y, and that Y was toilet trained, were not true. He appealed to the next stage of the complaint procedure.
24. During September Mr X chased the Council for a response to his escalated complaint several times. He also sent evidence that some of the information in the complaint response was not true. He said Y’s school had confirmed he was not toilet trained. He also said that the school had confirmed that an occupational therapist had given no specific advice in relation to Y. He provided a copy of a referral form that said Y “has not been seen by an Occupational Therapist and does not have a programme, however, school and parents feel he is in high need of one.”
25. The Council said it would respond to Mr X’s complaint appeal, but missed two deadlines for doing so.
26. On 17 October, the Council responded to Mr X’s complaints. It apologised that Mr X was not satisfied with the original response. It referred to Mr X’s complaint that Y had not received the two hours per half term of speech and language therapy. It said the speech and language therapist that had started at Y’s school in January had probably exceeded two hours per half term. However, it was silent on whether Y had missed therapy before January. It referred to Mr X’s complaint of the missed occupational therapy programme and toileting programme. The Council said it believed it was delivering the majority of the provision set out in Y’s EHC Plan, but could not say it was delivering all the provision.
27. The Council proposed it would complete an occupational therapy assessment, and review and issue a new EHC Plan for Y. The Council did not specifically accept any fault or apologise in respect of Mr X’s complaint that Y had missed special educational provision.
28. Mr X was not satisfied with the Council’s review of his complaint so he escalated it further. The Council conducted a review and took account of wider circumstances. It provided a final response in November. It upheld Mr X’s complaint, apologised and offered a payment for the injustice.

Analysis

Missed special educational provision

29. I have considered whether the Council secured the special educational provision detailed in paragraphs 17 and 18 above. This should have been secured from 27 February 2023 when that EHC plan was issued.
30. We are not able to resolve disputes about the content of an EHC Plan. If Mr X believes the wording of Section F is unclear he should first seek a review of the EHC Plan. If the decision is not to reassess, the council must provide information about the right to appeal that decision to the relevant Tribunal.
31. In my opinion the following elements are not clearly measurable:

• a SALT programme devised by a speech and language therapist
• an OT programme devised by an occupational therapist

32. The reason I think those elements are not clearly measurable is because it is not clear whether the bullet points in Section F are the SALT and OT programmes. The Council has said it has not found clear records on this question.
33. 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.
34. I have decided it is more likely than not that the SALT and OT programmes are the bullet points. This is because I am of the view the detail and content is consistent with programmes that have been devised by relevant therapists.
35. I have seen no evidence the school failed to do the things detailed in the bullet points. Therefore I do not find the Council failed to secure SALT and OT programmes.
36. I find that the following two elements of the special educational provision are specific and measurable. Therefore the existence or absence of them could have been checked by the Council at any time:

• Two hours per half term of speech therapist work.
• A toileting programme advised by an occupational therapist and Y’s parents.

37. I find the Council did not secure the two hours per half term of speech therapist work between February 2023 and January 2024. This is because a speech therapist did not work at the school in that period.
38. I also find the Council did not secure the toileting programme for the whole period I investigated. This is because I have seen no evidence of a toileting programme, or of liaison between an occupational therapist and Y’s parents on this point.
39. The Council’s failure to secure these elements of the special educational provision was fault which caused significant injustice in the form of missed educational provision for Y and distress for Mr X.
40. I have considered our guidance on remedies regarding the missed educational provision. Where fault has resulted in a total loss of educational provision we will usually recommend a remedy payment of between £900 to £2,400 to acknowledge the impact of that loss. The level of financial remedy is likely to be lower for injustice in other provision such as missing OT and SALT.
41. In this case the Council’s fault did not result in a total loss of educational provision for Y. It resulted in the loss of approximately five terms of two elements of the special educational provision.
42. I have decided to recommend a remedy payment of £1,000 for the missed provision. This is composed of £300 per whole term for the two and a half terms Y missed speech therapist work and a toileting programme, and £100 per whole term for the two and a half terms Y missed just the toileting programme.
43. In response to recent decisions we have made, the Council has agreed to remind staff of its absolute duty to ensure delivery of the special educational provision in EHC Plans. I therefore make no further service improvement recommendations.

Complaint handling

44. Mr X first raised a formal complaint with the Council at the beginning of July 2024. In its first response it said that Y was toilet trained. This was not accurate. It was also contrary to the information recorded in the most recent EHC review report of March the same year.
45. Mr X escalated the complaint and chased a response during September. The Council did not provide its first final response until 17 October, more than three months after the first complaint. I find the content of this response was not written in clear plain language. I also note the Council did not find fault or apologise. This was contrary to the findings of its third response.
46. Mr X escalated the complaint again. The Council provided its final response on 15 November 2024 more than four months after the first complaint. At this point the Council did acknowledge fault which it offered to remedy.
47. I have considered guidance on remedies for time and trouble caused by flaws in complaint handling. I find the timescale and ways the Council considered the information and evidence caused particular injustice in this case. I recommend the Council apologise and make a remedy payment for the injustice.

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Action

48. Within four weeks of the date of this decision the Council should:

• Apologise to Mr X for the injustice caused. 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 Mr X £1000 to recognise the impact of the loss of the special education provision. We recommend Mr X uses the payment for Y’s educational benefit.
• Pay Mr X £200 to recognise the distress caused by the Council’s failure to secure all Y’s special educational provision.
• Pay Mr X £200 to recognise the time and trouble caused by the failings in its complaint handling.

49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have completed my investigation and uphold Mr X’s complaint. There was fault by the Council which caused 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