Summary: Mrs X complained the Council failed to carry out agreed actions following a tribunal hearing regarding her son’s Education, Health and Care Plan. Mrs X also complained the Council failed to follow its complaints procedure. She says the Council’s actions negatively impacted her son’s mental health and meant he did not receive the provision he needed. Mrs X says the Council’s actions also caused her avoidable stress. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy to Mrs X.

The complaint

1. Mrs X complained the Council failed to carry out agreed actions following a tribunal hearing regarding her son’s Education, Health and Care Plan. She says the Council:
• Did not involve her when it consulted with potential educational settings;
• Did not provide her son with occupational therapy provision, and
• Did not name an educational setting as part of her son’s Education, Health and Care Plan
2. Mrs X also complained the Council failed to follow its complaints procedure.
3. Mrs X says the Council’s actions negatively impacted her son’s mental health and meant he did not receive the provision he required. She says the Council’s actions also caused her avoidable distress and left her feeling unsupported. Mrs X would like the Council to provide the provision her son needs and to improve its services so that nobody else is similarly affected.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. The Special Educational Needs and Disability Regulations 2014 state that if the Tribunal makes an order requiring a local authority to take any action, the local authority shall take that action within a specified time period.
8. We can investigate complaints where a council has not followed a Tribunal decision. This is because the Tribunal does not have powers to follow up its own final orders.
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(1), as amended)

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What I have and have not investigated

10. I have investigated Mrs X’s complaint for the period December 2023 (the date of the Tribunal order) to February 2025 (the date Mrs X brought her complaint to us).

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
13. 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 and Education, Health and Care Plans

14. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

16. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement, or that no school or other placement is specified in their EHC Plan.
17. We cannot direct changes to the sections about a child’s or young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Background

18. Mrs X’s son, Y, has an EHC Plan. Y stopped attending school (School A) in late 2021. Y received a package of home tuition starting in early 2022.
19. The Council reviewed Y’s EHC Plan in mid-2022.
20. In June 2022, the Council issued a final EHC Plan naming School A as the educational placement. Shortly after, Mrs X appealed to the Tribunal regarding the content of the EHC Plan.

What happened

21. The following chronology includes key events in this case and does not cover everything that happened.
22. On 4 December 2023, the Tribunal issued its decision, requiring amendments to Sections B, F and I of the EHC Plan. The Tribunal’s order also specified the following:
• The Council made assurances it would consult with schools regarding a placement for Y and was prepared to direct a school to accept Y if necessary.
• The Council made assurances it would invite Mrs X to all meetings regarding an educational placement for Y.
• The Council must start the provision of Occupational Therapy (OT) for Y straight away.
• The Council stated it would make a referral to OT services to start delivery of OT provision as a matter of urgency.
• The Tribunal stated that if there was a delay or long waiting list, the Council must commission OT provision from another provider, privately if necessary.
23. On 30 January 2024, the Council issued an amended final EHC Plan, naming home tuition for Y. Mrs X says she did not receive a copy of this document.
24. The Council issued a further final amended EHC Plan on 2 February 2024. The plan specified the special educational provision for Y, including OT provision, and named the educational setting as education otherwise than at school (EOTAS).
25. The Council sent consultation letters to several school settings in February and April 2024 regarding a potential placement for Y. However, none of the schools offered a placement.

Mrs X’s complaint

26. Mrs X complained to the Council on 29 May 2024. She said that following the Tribunal’s order, the Council had taken no action and made no contact about arranging education for Y. Mrs X said the Tribunal’s order specified the action required of the Council, namely for it to finalise the EHC Plan and contact potential school settings, involving Mrs X as part of the process. Mrs X said she was concerned about Y’s wellbeing if he was to return to a school environment, and said she no longer felt it was in Y’s best interests to go to another school. Mrs X said she considered Y’s needs would be best catered for with the provision of an outreach programme.
27. The Council replied on 19 June 2024 and said it had consulted with several schools regarding a placement for Y. The Council said it had made Mrs X aware of this; it also said it had regularly updated Mrs X’s advocate regarding this matter. The Council said despite its consultations, it had still not secured a suitable placement for Y. The Council said it had arranged a package of support, including tuition, speech and language therapy and short break support. The Council said it would work with Mrs X to discuss an outreach programme.
28. Mrs X emailed the Council on 2 September 2024 and asked it to escalate her complaint to stage two of its complaint procedure. Mrs X said she was unhappy with the stage one complaint response and said her complaint would be resolved once the Council followed the Tribunal’s order.
29. The Council carried out an annual review of Y’s EHC Plan in October 2024. As part of the review process, the Council recorded that Mrs X felt an EOTAS package was the best option for Y because of the length of time he had been out of school.
30. Mrs X contacted the Council again on 30 October 2024 to request escalation of her complaint to stage two. Mrs X said she had previously told the Council she was unhappy with its stage one response but had not received any further contact. Mrs X complained the Council had not addressed the order made by the Tribunal.
31. The Council issued its final complaint response to Mrs X on 4 December 2024. It said it had consulted with several schools, but none could meet Y’s complex educational needs. The Council said that following the Tribunal’s order, it had provided speech and language therapy alongside a package of home tuition. The Council said it had also requested assessments from an educational psychologist, a speech and language therapist and an OT. It said once these assessments were complete, it would arrange for any recommended therapies to be delivered as part of Y’s home learning package.
32. Mrs X remained dissatisfied with the Council’s response and brought the complaint to us.

Analysis - Mrs X’s complaint that the Council did not involve her when it consulted with potential educational settings

33. Following the Tribunal hearing, the Council sent consultation letters to several schools in February and April 2024. None of the schools consulted offered a placement for Y.
34. In its complaint response dated 19 June 2024, the Council said it had provided Mrs X’s advocate with a list of consulted schools on 26 April 2024. It said it had also provided regular updates to Mrs X’s advocate about where it was with identifying a placement for Y. The complaint response stated the Council had not secured a suitable placement at that time.
35. Mrs X says the Council did not provide regular updates; she also says she did not have an advocate, although Y’s keyworker occasionally contacted the Council to query the status of the EHC Plan.
36. The Tribunal order specifically referred to the Council’s assurances that it would invite Mrs X to all meetings regarding an educational placement for Y. I acknowledge Mrs X says the Council did not invite her to any such meetings.
37. The evidence shows the Council sent several consultation letters to various schools. However, none of the schools contacted offered a placement to Y, and I have seen no evidence the Council held meetings with these prospective schools.
38. The Council is not at fault regarding this aspect of the complaint because I have seen no evidence the Council met with the prospective schools. The evidence indicates the Council provided updates regarding its inability to secure a placement, although I acknowledge Mrs X considers these were not meaningful or regular.

Mrs X’s complaint the Council did not provide her son with occupational therapy provision

39. The Tribunal order stated that “the occupational therapy provision must commence now, and it would have to be continued through the review process” It also stated that unless Y “receives the recommended therapies, he will continue to struggle with his attendance”.
40. As referred to in paragraph 22, the Tribunal order stated the Council must commission the OT provision to start without delay, and from another provider if necessary.
41. I acknowledge Mrs X’s comments that Y has not received any OT provision since the Tribunal order dated 4 December 2023.
42. In its response to my enquiries, the Council acknowledged it has not provided the OT provision to Y. The Council has not provided an explanation as to the steps taken to secure this provision, nor an explanation as to why it has not made OT provision available.
43. The Tribunal order dated 4 December 2023 is clear regarding the Council’s requirement to make OT provision available to Y without delay. The Council’s failure to provide this provision, despite its assurances that it would take steps to start delivery of this provision as a matter of urgency, is fault.

Mrs X’s complaint that the Council did not name an educational setting as part of the EHC Plan

44. The Council has confirmed it did not name a school placement and did not direct a school to accept Y. It says although Mrs X suggested the names of some schools to be consulted, she also requested EOTAS. The Council refers to the annual review held in October 2024 and states this records Mrs X’s view that EOTAS was the most appropriate educational arrangement for Y.
45. I acknowledge the Council’s comments. However, I have seen no evidence to indicate Mrs X requested EOTAS immediately after the Tribunal order. In addition, the Council sent numerous consultation requests to schools in February and March 2024. I consider had Mrs X requested EOTAS shortly after the tribunal, it is more likely than not the Council would not have sent these consultation letters.
46. I acknowledge the annual review paperwork from October 2024 states Mrs X wanted EOTAS to continue. But this was 10 months after the Tribunal order. The order stated the Council planned to name a school setting by February 2024 and was prepared to direct a school to accept Y if necessary. The Council did not do this. As a result, Y had no school placement for a further 10 months after the Tribunal order up to the date of the annual review, by which time, Mrs X said EOTAS may be the best option due to the length of time Y was without a school placement.
47. The Tribunal order is clear that the Council stated it was prepared to direct a school to accept Y if necessary; the Tribunal accepted this explanation. The Council’s failure to name a school placement is not in line with the details set out in the Tribunal order. This is fault.

Mrs X’s complaint that the Council failed to follow its complaints procedure

48. The Council operates a two-stage complaint procedure. At stage one, the Council says it will provide a response within 20 working days. The Council says it will acknowledge stage two complaints within five working days and will provide a response within 25 working days.
49. Mrs X initially made her stage two complaint on 2 September 2024. She made a further stage two complaint request on 30 October 2024. The Council provided its stage two response on 4 December 2024.
50. I have seen no evidence of the Council’s acknowledgement of, or response to Mrs X’s stage two complaint dated 2 September 2024. This is not in accordance with the Council’s complaints procedure and is therefore fault.
51. Having identified fault, I must consider if this caused an injustice to Mrs X and/or Y. Mrs X says the Council’s actions negatively impacted Y’s mental health as he was not able to engage in any social settings. In addition, she says Y has missed out on the provision specified in his EHC Plan, including OT provision. Mrs X says Y has also received no community access which has meant he has been unable to thrive. Mrs X says the Council’s actions also caused her significant, avoidable stress and that she has been taking medication as a result. She says Y’s isolation and lack of community access has made her his only constant support, causing carer burnout and exhaustion. Mrs X says the Council’s actions have also caused financial strain as she has been unable to work and has had to cover day-to-day expenses that she considers should have been met by the Council.
52. I acknowledge Mrs X’s comments. The fault identified also caused uncertainty regarding how Y’s education may have progressed had the Council named a school placement within the timeframe referred to in the Tribunal order. The Council’s failure to adhere to its complaints procedure also incurred additional time and trouble for Mrs X.
53. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure is based on the impact to the child as well as other factors such as whether additional provision could now remedy some or all of the loss. Given that Y has missed almost two years of OT provision since the date of the Tribunal order, additional OT provision now is unlikely to make up for this period of missed provision.
54. As a result, a symbolic payment towards the higher end of the range is appropriate to take into account all missed provision, including the missed OT provision, as well as the avoidable distress caused to Mrs X and Y.

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Action

55. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X and Y for the fault identified. 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;
2. Commence occupational therapy provision as set out in the Education, Health and Care Plan. If there is a delay or a long waiting list, the Council should commission this provision from another provider to ensure it is made without delay;
3. Make a symbolic payment of £7,000 to Mrs X in recognition of all missed provision, including occupational therapy, and in recognition of the distress and uncertainty caused by the fault identified. This amount relates to the period December 2023 to February 2025. This is a period of 14 months, or three and a half school terms. The amount equates to £2,000 per term and is in line with our guidance on remedies;
4. Make a further symbolic payment of £150 to Mrs X in recognition of the time and trouble incurred;
5. Remind staff of the Council’s requirement to comply with agreements and directions made as part of a Tribunal order, and
6. Remind staff to adhere to the Council’s complaints procedure.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I have found fault causing injustice. The Council has agreed to take the above action to remedy the complaint and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman